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.iBRARY OF CONGRESS 




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Daniel Webster 

The Expounder of the 
Constitution 



By 

Everett Pepperrell Wheeler 



(< We cannot think of America without him. We cannot think of 
the Constitution or of the Union without him. His figure naturally 
belongs to and mingles with all great scenes and places which belong 
to hberty." — George Frisbie Hoar. 



G. P. Putnam's Sons 

New York and London 

Xlbe l^ntctterbocker predd 

1905 



Er- 



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UliiHAKV of Oii'^uirttSS: 



^ Oopyrieiu > 



Copyright, 1904 

BY 

EVERETT PEPPERRELL WHEELER 



Published, January, 1905. 



Ube Iknicfierboclicc prees, 'Bew Korl? 



PREFACE 

I WAS brought up among men who knew Mr. 
Webster personally, and loved and honored him. 
I heard his oration before the New York Histori- 
cal Society just before I went to college. In my 
Freshman year I went to his funeral, and saw him 
lie in simple state on his lawn at Marshfield. Every 
flag was at half-mast and every street draped in 
mourning. The hills were black with the countless 
throngs who assembled to pay the last tribute of 
respect to the first American of his day. The 
country showed how deeply it felt the loss of him 
who for fifty years had served it faithfully. My 
soul took in something of the universal emotion. 

Then again, the men who influenced me in my 
youth were alive to the difficulties of the political 
situation, and their talk was of Mr. Webster, and 
the country, and the Union, and of the part he had 
played in the long struggle that attended their 
growth, and that finally effected their preservation. 
I lived throueh the Civil War and saw what that 
preservation cost when the final grapple came. 

My professional studies have led me to a careful 
examination of the great cases that Webster argued, 
and the decisions that followed his arguments, and 
that have moulded our Constitution and made it 



III 



iv Preface 

adequate to the needs of a great Nation. For 
twenty years in the brief intervals afforded a busy 
lawyer by the demands of his exacting profession, 
I have been collecting the materials for this book. 
It has really been an evolution, and I send it forth 
now, invoking for it the friendly consideration 
of my fellow-citizens, and believing that the Web- 
ster lesson was never more needed than it is now. 
One necessary result of free institutions is to de- 
velop independence. But the majority of mankind 
will always follow a leader. And the independence 
of the leader often begets subservience on the part 
of the follower, the result of which is injurious to 
the Commonwealth. In these days of industrial 
warfare, it is especially necessary to recur to the 
principles of our Constitution, and to cultivate re- 
spect for the rights of others as sedulously as we 
insist upon our own. This was the motif of Mr. 
Webster's career. 

My attention was first drawn to the comparison 
between the Seventh of March speech and Mr. Lin- 
coln's first inaugural by my cousin Alexander S. 
Wheeler, of Boston. He knew Mr. Webster well. 
His suggestions and personal knowledge have been 
of great service to me in the preparation of this 
book. 

I have made a careful examination of the Web- 
ster manuscripts in the Congressional Library, and 
in the Library of the New Hampshire Historical 
Society at Concord, N. H. In both I have found 
much important unpublished material. Probably 
the most interesting of this is a manuscript of Mr. 



Preface • v 

Justice Story, giving an account of the argument 
of the Dartmouth College case, and of the case of 
Gibbons v. Ogden, that I discovered in the Library 
at Washington. 

Most of my references to Mr. Webster's writings 
are to the edition of his works in six volumes, pub- 
lished by Little & Brown during Mr. Webster's 
lifetime, and of which numerous editions have since 
been published. This edition is referred to as 
Webster's Works. The recent more complete edi- 
tion, published by Little, Brown & Company, is 
referred to in those cases in which it contains mat- 
ter not in the original edition. This is cited as 
Webster s Writings and Speeches. 

Everett P. Wheeler. 



CONTENTS 
CHAPTER I 

PAGE 

Introduction ........... I 

CHAPTER n 

Early Professional Life— Extension of Constitution to New States — 
Town of Pawlet vs. Clark — Criminal Jurisdiction in Harbors — 
U. S. vs. Bevans 12 

CHAPTER HI 

Impairing Obligation of Contracts— Law of the Land — Corporate 

Franchise — Dartmouth College Case i6 

CHAPTER IV 

Supremacy of the National Government — Power to Charter a Bank 

— McCulloch vs. Maryland 34 

CHAPTER V 

Interstate Commerce — Gibbons vs. Ogden 47 

CHAPTER VI 
The Slave Trade — La Jeune Eugenie 63 

CHAPTER VII 

State Insolvent Laws — Ogden vs. Saunders 67 

vii 



viii Contents 

CHAPTER VIII 

PAGE 

Acquisition of New Territory — American Insurance Company vs. 

Canter . 70 

CHAPTER IX 

The United States not a Confederacy but a Union — Reply to Mr. 

Hayne — Carver vs. Astor's Lessee ...... 76 

CHAPTER X 

The United States a Union, not a Confederacy — Subject Continued 

— Reply to Calhoun ......... 93 

CHAPTER XI 

Power of the United States over Acquired Territory when Admitted 

as a State — New Orleans vs. United States . . . . iiS 

CHAPTER XII 

Effect of Grant of One Franchise upon Power to Grant Rival Fran- 
chise — The Charles River Bridge Case . . . . .121 

CHAPTER XIII 

Rights of Corporations in Other States— Comity between States — 

Bank of Augusta vs. Earle 124 

CHAPTER XIV 

Girard Will Case— Rhode Island Boundary Case— Case of the Lex- 
ington 129 

CHAPTER XV 

Eminent Domain over Franchise — West River Bridge Case . . T34 

CHAPTER XVI 

Power to Reorganize State Governments— Dorr Rebellion . . .137 



Contents ix 

CHAPTER XVII 

PACE 

State Power over Foreign Commerce— Passenger Tax Cases . . 143 

CHAPTER XVIII 

Extensive Range of Webster's Legal Acquirements— Van Rensselaer 

Title — Van Rensselaer vs. Kearney I54 

CHAPTER XIX 

The Constitution and Slavery— Seventh of March Speech . . .157 

CHAPTER XX 
Conclusion • • -177 

Table of Cases iSr 

Index 183 



Daniel Webster 

The Expounder of the Constitution 



CHAPTER I 



INTRODUCTION 



The work of a truly great man must needs be 
permanent in its nature. To understand the true 
character of existing systems and to value them 
justly, it is needful to recur from time to time to 
their development and to study the part that states- 
men have played therein. No American has done 
more to make our government what it is than 
Daniel Webster. To understand the Constitution 
of America, we must needs examine what he did 
while it was yet — so to speak — in the gristle, and 
this study will also teach us something of the true 
function of the profession of law in this country. 

The labors that fall to an American lawyer are 
so varied in character that no one man can perform 
them all. In the mother country the profession 
for this reason is divided into ranks and grades, 
and he who serves in one does not attempt the 



2 Daniel Webster 

responsibilities of the other. The attorney must 
be a shrewd and skilful man of business. The 
proctor must be familiar with the rules of naviga- 
tion. There is no height of intellectual attainment 
to which the advocate may not aspire, and no 
resource of learning or power of persuasive or 
judicial eloquence which will not aid him in his 
daily task. 

Again, the development of our system of juris- 
prudence to provide for the rapid changes in the 
conditions of business and social life imposes a 
constant duty upon the intelligent and conscien- 
tious lawyer. The law which regulated the busi- 
ness of a few stages and canal-boats was inadequate 
to direct the complicated affairs of carriers by steam 
on land and sea. The judge-made code for the 
carrier of articles that could be weighed and meas- 
ured, had but a limited application to the companies 
who put at the service of the public the invisible 
force of electricity, and have made New York and 
Boston, Chicago and San Francisco, parts of one 
great municipality. The English common law was 
well adapted to the thickly settled and compact 
island of Great Britain, but was insufficient and in 
some particulars ill adapted to the requirements of 
a people scattered over thirteen Commonwealths 
just formed into one Union. 

There is yet another more arduous responsibility 
resting on the American lawyer from which our 
English brethren are exempt. First among the 
nations the United States established a written 
Constitution which should be the supreme law of 



Introduction 3 

* 

the land, supreme over Executive and Legislature, 
and which gave to the courts of justice the power to 
enforce its supremacy, by declaring that a statute 
which had received the votes of both houses of 
Congress and the signature of the President, or 
which had been adopted by a State Legislature 
and signed by its Governor, should yet be alto- 
gether held for naught if it violate the supreme 
Constitution. 

Well might we say when we contemplate the 
magnitude of these labors, — Who is sufficient for 
these things ? No doubt now, as in the Apostles' 
time, there are many who pervert the word of God, 
of whose justice and equity courts of justice ought 
to be the visible embodiment. But also there are 
many who, like St. Paul, speak in godly sincerity, 
and fulfil with singleness of heart the true function 
of the lawyer, which is to aid the court in the dis- 
charge of its exalted and responsible office. 

Preeminently such a man was Mr. Webster. He 
became a member of the bar at a time when many 
of the most important questions since determined 
were unsettled. More than any other man, he aided 
in their settlement.^ 

Coleridge tells us that " The first man upon 
whom the light of an idea dawned, received thereby 
the function of a lawgiver." It was because Mr. 
Webster, in his capacious mind, apprehended with 

' " It is impossible to overestimate the support that the court derives from 
the bar, and in Mr. Webster's arguments fidelity to the court is as conspicu- 
ous as fidelity to his client. It is not client first and conscience afterwards, 
but duty to both together, one and inseparable." — Chief Justice Fuller, 
IVebste?- Centennial, p. 275. 



4 Daniel Webster 

such clearness the idea which was the soul of the 
novel system our fathers established, that he was 
able to lead our courts to formulate this idea in 
their judgments. 

But it may be asked, How can this be ? Is it 
not the duty of judges to declare, and not to make 
the law ? In one sense no doubt it is. The judge 
ought not to depart from the principles of the law 
as he finds them established. But when a case 
comes up, as often it does, which involves a new 
application of these principles or modification of 
rules already settled, to adapt them to a new state 
of facts for which no precise provision has been or 
could have been made, the judge does, in a very 
real and important sense, make the law and is a 
lawgiver as well as a judge. If the lawyer who 
presents such a case to the court is adequate to his 
task, he must first thoroughly understand the exist- 
ing rule and the reason for it ; next, he must appre- 
ciate the change in circumstances and conditions 
which makes this in its precise form no longer ap- 
plicable. To this he must add constructive ability, 
and be able to show how the rule, as it has hitherto 
served, may most wisely and fitly grow to meet the 
requirements of the present and of the future. No 
man in America ever combined these qualities to a 
higher degree than Mr. Webster. He understood 
the history and character of the mother country 
and the common law which was the necessary out- 
growth of that character and history. He looked 
into the very heart of the American people and 
realized our needs. He was able to point out the 



Introduction 5 

path by which we could most wisely be led to our 
true growth and development. With unrivalled 
power for making hard places easy and dark things 
clear, he succeeded in impressing his own convic- 
tions upon the courts before which he practised. 

In dealing even with the precision of mathematics, 
great minds can see what lesser minds fail to ap- 
prehend. What they see they can make clear. The 
truths which Newton and Laplace were the first to 
behold and develop can now be taught to our col- 
lege students ; and judges many times rightly and 
justly laid down as law what the genius of Webster 
perceived and demonstrated — what without the aid 
of that genius might have remained undetermined. 
Most important of all his public services was the 
part he took in demonstrating the true method of 
construing the Constitution of the country. The 
very fact that this was the supreme law of the land 
made it all the more important that its construction 
should be established on the right basis. 

From the begfinninof there was a school of think- 
ers who sought to limit the scope of our great 
charter and restrain its plain provisions within nar- 
row bounds. It is the most brief of constitutions. 
Its sections and articles never undertook to provide 
in detail for all emergencies which might arise, but 
established general provisions, which, fairly con- 
strued, should be adequate for every occasion. If 
the country were to be held in bondage to the 
letter, and disregard the spirit of the Constitution, 
the purpose stated in its preamble, " to form a more 
perfect Union," would fail of accomplishment. 



6 Daniel Webster 

No doubt there were thinkers who sought to 
give such a lax interpretation to its provisions that 
they might mean anything or nothing, as the im- 
mediate occasion might seem to require, and the 
strict constructionists did good service in restrain- 
ing- the vagraries of such reasoners. The merit of 
Mr. Webster lay in this, that he maintained the 
golden mean, and in numerous arguments pointed 
out clearly and convincingly the evils which led to 
the formation of the Constitution, the objects its 
founders sought to accomplish and the method by 
which they had, upon fair rules of construction, 
achieved the great end they had in view. 

The celebration of the centennial of the acces- 
sion of Chief Justice Marshall to the Supreme 
Court of the United States called attention to the 
leading part which the decisions of that Court have 
played in making the nation what it is. Side by 
side with the great name of Marshall should be 
placed that of Webster. The arguments of the 
one were as necessary as the decisions of the other. 
They combined to impress upon the American 
people a conviction of the possibilities of the 
country, of the fitness of the government which 
they had founded to enable them to make the most 
of these possibilities and, above all, the conviction 
that the thirteen Colonies had become blended 
into one indissoluble Union. 

It is hard for us to realize in the days of our 
greatness the weakness and insignificance of our 
beginnings. It frequently happens under Ameri- 
can institutions that a man born of the humblest 



Introduction 7 

parents and amid the most adverse circumstances 
has become a man of wealth, power and influence. 
But the rise of the most remarkable of them all is 
not more extraordinary than the change which has 
taken place in the condition of the American people 
since the birth of Mr. Webster. He was born at 
the conclusion of the Revolutionary War and just 
before the treaty of peace was concluded between 
the thirteen Colonies and the United Kinedom of 
Great Britain and Ireland. His father was one of 
the hardy settlers who had not found scope for 
their energies in the surroundings of their child- 
hood, and had gone into the forest, not only to 
discover, but really to create a new world. The 
little house in Salisbury, New Hampshire, where 
Daniel Webster was born on the i8th day of Janu- 
ary, 1782, was on the border of colonial civiliza- 
tion.^ The Colonies were scattered alongr the 
Atlantic coast and the eastern slope of the Alle- 
ghanies. They had neither money nor credit ; were 
deeply in debt, with an army about to be disbanded, 
the meagre pay of which was long in arrears.' They 
lived under a Confederation which gave to the gen- 
eral government no real power, and which worked 

' As Mr. Webster said in his speech at Saratoga, August ig, 1840 (Web- 
ster's IVoris, vol. ii., p. 30): 

" Gentlemen, it did not happen to me to be born in a log-cabin; but my 
elder brothers and sisters were born in a log-cabin, raised amid the snow- 
drifts of New Hampshire, at a period so early that, when the smoke first 
rose from its rude chimney, and curled over the frozen hills, there was no 
similar evidence of a white man's habitation between it and the settlements 
on the rivers of Canada." 

' See Stone's interesting Zi/e of Johti Howland, a Rhode Island soldier, 
who, when his enlistment expired, was obliged to walk home from 
Yorktown. 



8 Daniel Webster 

so badly that it left the Colonies at the end of the 
war with actually less unity that they had at the be- 
ginning. The father of Daniel Webster had been 
a distinguished officer in the Revolution, and in 
common with his comrades had smarted under the 
weakness and incompetency and consequent injus- 
tice of the government of the Confederation, and he 
realized, therefore, the absolute necessity for a united 
and stable government, if the thirteen independent 
Colonies were ever to become a united nation. 

The treaty of peace concluded at Paris, Sep- 
tember 3, 1783, contained in its first article the 
following clause : 

" His Britannic Majesty acknowledges the said United 
States, viz: New Hampshire, Massachusetts Bay, Rhode Island 
& Providence Plantations, Connecticut, New York, New Jer- 
sey, Pennsylvania, Delaware, Maryland, Virginia, North Caro- 
lina, South Carolina & Georgia." 

In the breast of an American of the present 
day, this description of his country cannot fail to 
awaken amusement. But the description was ac- 
curate at the time. The necessity for something 
better led to the calling of the convention for the 
forminpf of a new Constitution for the United 
States. The preamble to this instrument, as finally 
adopted, uses very different language. There are 
no words there indicating that these " Independent 
States " were any longer to remain independent as 
between themselves. On the contrary, it begins 
as follows : 

" We, the people of the United States, in order to form a 
more perfect Union, establish Justice, ensure domestic Tran- 



Introduction 9 

quilHty, provide for the common defence, promote the general 
Welfare, and secure the Blessings of Liberty to ourselves and 
our Posterity, do ordain and establish this Constitution for the 
United States of America." 

In debates which took place in the conventions 
which were held in the different States to consider 
whether or not they would ratify this Constitution, 
the pivot on which the discussion turned was really 
whether this preamble expressed the national con- 
sciousness. Patrick Henry cried in Virginia : 
" Who gave them the right to say, — ' We, the 
people of the United States'?" True enough, 
that right 'had not been conferred upon the dele- 
gates. But they assumed it, and when this assump- 
tion of authority was ratified, that which at first was 
but a proposition became the Constitution of a na- 
tion. The student of the constitutional history of 
the United States from 1789 to 1861 knows well 
that there was a constant strife between those who 
adhered to the old notion that the States were still 
what the treaty declared them to be, and those 
who maintained that the Constitution had welded 
them into a nation. 

As Mr. Webster himself said in the debate on 
the Force Bill, February 16, 1833^ : 

" The Constitution, Sir, regards itself as perpetual and im- 
mortal. It seeks to establish a union among the people of the 
States, which shall last through all time. Or, if the common 
fate of things human must be expected at some period to 
happen to it, yet that catastrophe is not anticipated. 

1 Webster's Works, vol. iii., p. 471. 



lo Daniel Webster 

" The instrument contains ample provisions for its amend- 
ment, at all times; none for its abandonment, at any time. It 
declares that new States may come into the Union, but it does 
not declare that old States may go out. The Union is not a 
temporary partnership of States." 

One of the extraordinary statements in Senator 
Lodge's Life of Webster is that all the early fathers 
believed in the right of secession.^ No doubt 
some of them did. But they were not the men 
who were responsible for the Constitution. 

Rufus Kine, Roeer Sherman, Alexander Hamil- 
ton and Benjamin Franklin knew very well what 
they were about when their great Constitution was 
published to the world.^ 

It found no warmer friends anywhere than among 
the old soldiers of the Revolution. These men re- 
alized the necessity of the change expressed in the 
preamble and rallied to the support of the Con- 
stitution which Washington signed, with as much 
unanimity as they had stood by him during the 
war. Among them, none was more resolute, more 
thoroughly in earnest, than the father of Daniel 
Webster, and the son grew up, amid the forests 
and mountains of his native State, impressed with 

' Lodge's Zi/f ^/ Webster, pp. 176, 177. 

5 James Russell Lowell in his "Essay on Abraham Lincoln," Prose 
Works, vol. v., p. 201, states this well : 

" Though it [secession] contradicts common-sense in assuming that the 
men who framed our government did not know what they meant when they 
substituted Union for Confederation ; though it falsifies history which shows 
that the main opposition to the adoption of the Constitution was based on 
the argument that it did not allow that independence in the several States 
which alone would justify them in seceding." 

See also the argument on this subject in Webster's Reply to Calhoun, 
post, pp. 102-107. 



Introduction ii 

the conviction that he was the citizen of a nation. 
This conviction he finally impressed upon the great 
majority of his fellow-citizens in the Northern States 
and upon no small part of the people of the South- 
ern States, It was this conviction that carried us 
through the Civil War. Without it, our success in 
that great struggle would have been impossible. 

As well said by an American historian who him- 
self lived through the war : 

" For that magnificent popular enthusiasm for the Union — 
an enthusiasm the like of which for blended fury and intel- 
ligence, enlisted on behalf of an idea, the world had never be- 
fore beheld; this, as history will explain, was by no means the 
birth of a moment — Fort Sumter fired it, but it was otherwise 
fuelled and prepared. Daniel Webster, by eminence, his whole 
life long, had been continuously at work. Speech by speech, 
year after year, the great elemental process went on. There 
men might scoff and here men might jeer, but none the less 
through jeer and scoff the harnessed Titan went steadily to his 
task. Three generations, at least, of his countrymen, he im- 
pregnated, mind and conscience and heart, with the sentiment 
of devotion to the Union. This in a great part accounts for 
the miracle in 1861." ' 

' Scribner's Monthly, vol. xii., p. 425 ; " Daniel Webster and the Com- 
promise Measures of 1850," by William C. Wilkenson. 

Another interesting statement of the influence of Webster's speeches upon 
the war for the Union is to be found in Mellen Chamberlain's Jolin Adams 
and Other Essays, p. 355 : 

" The discourses at Plymouth Rock and at Bunker Hill were not for 
an hour, nor was the Great Reply. In the days of their utterance they 
were resplendent, unprecedented eloquence; but they spake truest when 
they became wisdom to Lincoln and valor to Grant ; they rang loudest when 
heard along the front of battle, and inspired deeds of immortal heroism on 
a hundred fields." 

See also Rhodes, History of the United States, vol. i., p. 161; Blaine, 
Twenty Years in Congress, vol. i., p. 94; and Joseph H. Choate's masterly 
oration on Rufus Choate, p. 23. 



CHAPTER II 

EARLY PROFESSIONAL LIFE EXTENSION OF CONSTI- 
TUTION TO NEW STATES TOWN OF PAWLET 

VS. CLARK CRIMINAL JURISDICTION IN HAR- 
BORS U. S. VS. BEVANS 

So much has been written of the early life of Mr. 
Webster that it is unnecessary here to speak further 
of it. Three years after graduation and on the 24th 
July, 1804, being then twenty-two years of age, he 
became a student in the office of Christopher Gore 
in Boston. Mr. Gore had been a member of the 
United States Senate, and had been our Minister 
to England. Nothing shows more clearly the ex- 
traordinary effect which even then was produced 
by the personality of Mr. Webster, than the fact 
that he, without any introduction, an absolutely 
unknown young man, should have been admitted 
into the office of one of the leaders of the Massa- 
chusetts bar, and one of the first men in the United 
States.^ 

In March, 1805, Mr. Webster was admitted to 
the bar of the Suffolk Common Pleas. In the 
same month, he opened an office at Boscawen, N. 
H., near his father's home, where he remained 

'Webster's Writings and Speeches, vol. xvii., p. 185. 

12 



Extension of Constitution to New States 13 

until that father's death. In September, 1807, he 
removed to Portsmouth, N. H. He was married 
on the twenty-fourth of June, 1808. On the twelfth 
of November, 181 2, he was elected to Congress 
from the Portsmouth District, and took his seat at 
the extra session in the following May. In August, 
1 8 14, he was reelected to Congress. 

At the February Term of that year, he appeared 
for the first time as counsel before the Supreme 
Court of the United States. He argued two prize 
cases at that Term and appeared in the same cases 
at the following Term, additional proofs having 
been ordered in both. At that time, the difficul- 
ties of travel were so great, and Washington was 
consequently so difficult of access, that the majority 
of cases in the Supreme Court of the United States 
were argued either by members of Congress or by 
counsel from neighboring States, Baltimore es- 
pecially had a brilliant bar, and the names of Pink- 
ney, Wirt and Martin appear very frequently in 
the reports of Cranch and Wheaton. 

The first appeal of real importance that Mr. 
Webster argued in the Supreme Court was that 
of the Town of Pawlet vs. Clark. ^ In this case 
the construction of that clause of the Constitution 
which extended the judicial power of the United 
States to controversies between citizens of the 
same State claiming land under grants of different 
States was involved. Here the strict construction- 
ist appears on the scene, and claims that this phrase 
of the Constitution meant the different States that 

' 9 Cranch, 292. 



14 Daniel Webster 

framed the Constitution, and did not apply to any 
States that might subsequently be admitted. Web- 
ster convinced the Court without much difficulty 
that this construction was too narrow, and that 
this clause of the Constitution, and by inference all 
similar clauses in that instrument, referred not only 
to the thirteen States which framed the Constitu- 
tion, but to all which they should subsequently 
admit as integral parts of the Union. This seems 
too plain for argument now, but in those early 
days, when everything was in a formative condition, 
the decision was important, and in its essence in- 
volved many of the subsequent decisions which did 
not appear, at the time they were made, to be so 
clear. 

The rest of the case required a consideration of 
the character of the grants which had been made 
by the Colonial Governor of New Hampshire to 
the town of Pawlet, and which were precedents 
for the subsequent grants by the various States for 
educational purposes. This charter divided the 
land which was set apart to the town of Pawlet 
into sixty-eight shares, of which one was " for the 
incorporated Society for the propagation of the 
Gospel in foreign parts, one share for a glebe for 
the Church of England as by law established, one 
share for the first settled Minister of the Gospel, 
one share for the benefit of a school in said Town." 

It was held after a very careful investigation of 
the English Ecclesiastical Law, that the town could 
take the land as trustee, and that where no Episco- 
pal church was established before the Revolution 



Extension of Constitution to New States 1 5 

the State could appropriate the share which had 
been given for such purpose by the original charter 
and apply it to other public uses. In this case 
Vermont had appropriated to the use of public 
schools the glebe right which had not been taken 
up by the Episcopal Church, and the Supreme 
Court sustained the validity of this statute. 

In a subsequent case in which Mr. Webster was 
counsel, — Society for the Propagation of the Gos- 
pel in Foreign Parts vs. Town of New Haven, ^ — the 
rights of this venerable Society came further under 
consideration by the Court. It was held that the 
charter which reserved to that Society a share of 
the town lands vested an interest in the Society 
which the Legislature of Vermont had no power to 
divest. This really was an application of the prin- 
ciples of the Dartmouth College case stated in 
Chapter III. 

Mr. Webster does not appear to have argued 
any cases at the February Term in 18 16. In 181 7, 
he appeared in numerous prize cases. In 1818, he 
had to deal with the construction of that clause of 
the Constitution which described the judicial power 
and extended it to cases of admiralty and maritime 
jurisdiction.^ Here it was held that the meaning 
of this article was a grant, not of territory, but of 
jurisdiction, and that the harbors in the different 
States, although within the admiralty jurisdiction 
of the Courts of the United States, were not with- 
drawn from the jurisdiction of the particular State 
in which they happened to be situated. 

• 8 Wheat., 464. ' U. S. vs. Bevans, 3 Wheat., 336. 



CHAPTER III 

IMPAIRING OBLIGATION OF CONTRACTS LAW OF THE 

LAND CORPORATE FRANCHISES — DARTMOUTH 

COLLEGE CASE 

And now in order we approach the case of Dart- 
mouth College vs. Woodward,^ which has been 
cited nine hundred and seventy times in subsequent 
cases, more frequently than any other American 
decision.^ 

It is often said that the effect of subsequent con- 
stitutional amendments and general legislation has 
been to rob the doctrine announced in this case of 
much of its vitality. It is doubtless true that after 
this decision, in countless ways, public apprehen- 
sion was aroused lest the corporations, charters for 
which were being granted by the Legislatures, 
or which were incorporated under general acts, 
should become too strong for the people ; and lest, 
also, applicants might, through political favoritism, 
or even more ignoble methods, obtain franchises 
the grant of which would be injurious to the public. 
Laws were passed, and constitutional amendments 
were adopted, the object of which was to reserve 

'4 Wheat., 518. 

5 Alfred Russell, in Dartmouth Centennial, p. 282. The number is made 
up to the year 1901. It must now exceed one thousand. 

16 



Dartmouth College Case 17 

to the Legislature the power to amend or repeal 
charters of corporations. For example, the Con- 
stitution of the State of New York, framed and 
adopted in 1846 (Article 8, Section i), provides as 
follows : 

" Corporations may be formed under general laws; but shall 
not be created by special act, except for municipal purposes, 
and in cases where, in the judgment of the legislature, the 
objects of the corporation cannot be attained under general 
laws. All general laws and special acts passed pursuant to 
this section, may be altered from time to time, or repealed." 

But notwithstanding the endeavors that were 
thus made to weaken the effect and limit the scope 
of the decision in the Dartmouth Colleofe case, the 
principle upon which it was based, that of enforc- 
ing constitutional guaranties for the protection of 
vested rights, remains in full vigor, and has been 
not only a safeguard, but an important element in 
the growth and prosperity of the American people. 
Wretched, indeed, is the condition of any nation 
in which the peaceful citizen cannot enjoy in secur- 
ity the fruits of his honest labor. No system of 
government can justly be called a republic which 
does not secure to all its citizens, whether rich or 
poor, whether engaged in individual enterprise or 
united with others in partnership or corporation, 
the protection of the law for their lawful business. 
The danger in every Democracy has been, that in 
times of popular excitement this principle will be 
forgotten, and that the property acquired by indus- 
try and intelligence will be confiscated, wholly or 
in part, for the benefit of the idle and improvident. 



1 8 Daniel Webster 

With us it is otherwise. In a word, the people of 
this Republic are sovereign, but they are a consti- 
tutional sovereign. Their monarchy is a limited 
monarchy. They have freely chosen to limit their 
own power by Constitutions, which they justly hold 
sacred. They have entrusted to the courts of jus- 
tice, which the tradition of our race leads us to 
reverence, the unique power of enforcing the man- 
date of the Constitution, and saying to the repre- 
sentatives of the people, whether in the executive 
chair, or in the Legislature, " Thus far shalt thou 
Q-Q and no farther." 

The system which has thus been described has 
become incorporated in the mental constitution of 
the American people. They seldom realize the 
difference between this and other so-called repub- 
lics. But when we come to trace the history of 
our system and observe the manner in which the 
scheme, which looked well on paper, came actually 
to be worked out and realized in action, we find 
that this was in great measure due to the argument 
of Mr. Webster in the Dartmouth College case and 
to the decision of the Supreme Court which crowned 
that argument. 

The action in which that decision was rendered 
was begun in the Supreme Court of New Hamp- 
shire. The contention was between the trustees 
of Dartmouth College, appointed under the provi- 
sion of its charter, and the trustees appointed by 
act of the Legislature, which changed that charter 
without the consent of the College. 

In the argument before the Supreme Court of 



Dartmouth College Case 19 

New Hampshire, reference was made by the coun- 
sel for the College to the provisions of the Bill of 
Rights of that State, which were derived from 
Magna Charta, 

*' That no person shall be deprived of his property, immu- 
nities or privileges, put out of the protection of the law, exiled 
or deprived of his life, liberty or estate, but by judgment of his 
peers or by the law of the land." 

The Supreme Court of New Hampshire decided 
that the trustees had no property, immunities, lib- 
erty or privilege in the corporation, within the 
scope of this prohibition in the Bill of Rights. 
Chief Justice Richardson went further and main- 
tained " that the law of the land meant any law 
that the Legislature might choose to enact." In 
other words, he contended that the object of these 
provisions was to protect the people only against 
the arbitrary action of the executive. 

It will at once be perceived that this question 
was fundamental. The Court of New Hampshire 
had said : 

" How a privilege can be protected from the operation of the 
law of the land, by a clause in the Constitution declaring that 
it shall not be taken away, but by the law of the land, is not 
very easily understood." 

The difficulty in the case as it was presented to 
the United States Supreme Court was this. That 
Court had no jurisdiction upon the writ of error to 
review the decision of the State Court upon its own 
Constitution. The writ of error was based solely 
upon the alleged invalidity of the act of the Legis- 
lature of New Hampshire under the Constitution 



20 Daniel Webster 

of the United States. The guaranty of the State 
Constitution was so much more explicit that to 
the ordinary lawyer it would appear a hopeless 
task to sustain the contention under the United 
States Constitution, when that of the State Bill of 
Rights had proved to be inadequate. It was the 
business of the great lawyer to go below the sur- 
face of his case and to show that the fundamental 
error of the opinion of the Court below, was equally, 
fatal to the validity of the act under either Consti- 
tution. To this end, and to this end only, it be- 
came important at the outset of Mr. Webster's 
argument in the Supreme Court to use the Consti- 
tution of New Hampshire as an illustration, and to 
show in fact that the method of reasoning which 
had been adopted by the Court below, was fatal to 
any constitutional guaranty either to person or to 
property. For if the act of the Legislature was 
in itself the law of the land, and its inscription 
on the statute-book was the limit of inquiry as to 
what the law of the land might be, the restraint 
of the Constitution upon the Legislature would be 
removed altogether. 

The story is, that when the Chief Justice looked 
at the record his first impression was adverse to 
the plaintiffs in error. But it is related that al- 
though he and others of the Justices had prepared 
to take notes of the argument of Mr. Webster, yet 
it seemed so clear and convincing, as it flowed in 
its majestic course, that the paper remained blank.^ 

' At the time of the argument of this case printed briefs were not as now 
required to be filed. 



Dartmouth College Case 21 

After stating the facts of the case, Mr. Webster 
referred to the provisions of the State Constitution. 
He said : 

"I am aware of the limits which bound the jurisdiction of 
the Court in this case, and that on this record nothing can be 
decided but the single question, whether these acts are re- 
pugnant to the Constitution of the United States. Yet it may 
assist in forming an opinion of their true nature and char- 
acter to compare them with those fundamental principles 
introduced into the State governments for the purpose of 
limiting the exercise of the legislative power, and which the 
Constitution of New Hampshire expresses with great fulness 
and accuracy." ' 

He then proceeded to argue that a corporate 
franchise was property. He cited numerous Eng- 
lish cases in which such franchise had been recoo'- 
nized as property, and had been held to confer 
rights which the courts were bound to respect. He 
showed that the word " liberties " used in Magfna 
Charta included a franchise, and that this franchise 
could not be taken away by arbitrary government. 
He showed that while under the Roman law the 
will of the prince was paramount and he even had 
the right, by special decree, to interpret statutes in 
reference to pending cases ^ ; with us, to use his own 
language, 

"The power of the lawgiver is limited and defined; the 
judicial is regarded as a distinct independent power."' 

•Webster's Works, vol. v., p. 46S. 

' Curiously enough in modern times this right was claimed by the Presi- 
dent of the Boer Republic, and he removed a Judge who ventured to dis- 
agree with him. 

^Webster's Works, vol. v., p. 486. 



22 Daniel Webster 

"That the Legislature shall not judge by act, it shall not 
decide by act, it shall not deprive by act, but it shall let all 
these things be tried and judged by the law of the land." 

" By the law of the land is most clearly intended the gen- 
eral law; a law which hears before it condemns; which pro- 
ceeds upon inquiry, and renders judgment only after trial. 
The meaning is, that every citizen shall hold his life, liberty, 
property, and immunities under the protection of the general 
rules which govern society. Everything which may pass under 
the form of an enactment is not therefore to be considered 
the law of the land. If this were so, acts of attainder, bills of 
pains and penalties, acts of confiscation, acts reversing judg- 
ments, and acts directly transferring one man's estate to an- 
other, legislative judgments, decrees and forfeitures in all 
possible forms, would be the law of the land." "... 

" If then the franchise of a corporation be property, this 
property is a creation of a grant. To this grant, there are two 
parties; the charter must be accepted, the acceptance of the 
grant constitutes the contract. 

" There are, in this case, all the essential constituent parts 
of a contract. There is something to be contracted about, 
there are parties, and there are plain terms in which the 
agreement of the parties on the subject of the contract is ex- 
pressed. There are mutual considerations and inducements. 
The charter recites, that the founder, on his part, has agreed 
to establish his seminary in New Hampshire, and to enlarge it 
beyond its original design, among other things, for the benefit 
of that Province: and thereupon a charter is given to him and 
his associates, designated by himself, promising and assuring 
to them, under the plighted faith of the state, the right of 
governing the college, and administering its concerns in the 
manner provided in the charter. There is a complete and 
perfect grant to them of ali the power of superintendence, 
visitation, and government. Is not this a contract ? If lands 
or money had been granted to him and his associates, for the 
same purposes, such grant could not be rescinded. And is 
there any difference, in legal contemplation, between a grant 

'Webster's Works, vol. v., p. 486. 



Dartmouth College Case 23 

of corporate franchises, and a grant of tangible property ? 
No such difference is recognized in any decided case, nor 
does it exist in the common apprehension of mankind." ' 

Then Mr. Webster proceeded to answer the argu- 
ment, " That abuses might arise in the management 
of such institutions which the ordinary courts of 
law would be unable to correct." His reply is ap- 
plicable in many another case : 

" But this is only another instance of that habit of suppos- 
ing extreme cases, and then of reasoning from them, which is 
the constant refuge of those who are obliged to defend a 
cause, which, upon its merits, is indefensible." * 

This was the argument. The opinion of the 
court was delivered at the following Term, Feb- 
ruary, 1819. 

It is related that the parties in New Hampshire 
and their friends in other States (for the questions 
had been perceived to be of general importance) 
were dissatisfied with the argument in support of 
the validity of the act which Mr. Holmes of New 
Hampshire and Mr. Wirt^ had made, and that Mr. 
Pinkney had been retained to apply for a re-argu- 
ment, before the opinion of the Court should be 
delivered. 

The story goes that he was present in court at 
the opening of the term, but that Chief Justice 
Marshall designedly went on and delivered the 
opinion of the Court without giving to Mr. Pinkney 

' Webster's Works, vol. v. , p. 497. 
'Webster's Works, vol. v., p. 49S. 

' An interesting unpublished letter of Webster to Wirt on this subject 
will be found at the end of the chapter. 



24 Daniel Webster 

the opportunity to make the motion. This may 
be one of the myths that are apt to cluster around 
important decisions. But the tradition referred to 
may be well founded. In any case, the opponents 
of the College took nothing by their motion. The 
opinion of the court follows closely the argument 
of Mr. Webster. It states at the outset : 

" That the framers of the Constitution did not intend to 
restrain the States in the regulation of their civil institutions, 
adopted for internal government, and that the instrument 
they have given us is not to be so construed, may be ad- 
mitted. The provision of the constitution never has been 
understood to embrace other contracts than those that respect 
property, or some object of value, and confer rights which 
may be asserted in a court of justice." ' 

The court then proceeded to show that an ed- 
ucational institution founded by individuals and 
endowed by them is not a public institution. Its 
trustees are not public officers, its professors and 
students are not members of the civil government. 

X The Charter is " a contract to which the donors, the trus- 

tees and the crown (to whose rights and obligations New 
Hampshire succeeds), were the original parties. It is a con- 
tract made on a valuable consideration. It is a contract for 
the security and disposition of property. It is a contract, 
on the faith of which, real and personal property estate has 
been conveyed to the corporation. It is then a contract 
within the letter of the constitution, and within its spirit 
also, unless the fact that the property is invested by the 
donors in trustees, for the promotion of religion and educa- 
tion, for the benefit of persons who are perpetually changing, 
though the objects remain the same, shall create a particular 

'Dartmouth College vs. Woodward, 4 Wheaton, 518-629. 



Dartmouth College Case 25 

exception, taking this case out of the prohibition contained 
in the constitution." ' 

The opinion then inquired as to the relation of 
the State of New Hampshire to the case, and held 
that this State succeeded to the rights of the crown 
in the grant and that all contracts and restrictions 
on property existing at the time of the Revolution 
were not affected by it. The franchises which had 
been granted to Dartmouth College remained the 
same under the new as they were under the old 
government, subject to the limitations found in the 
Constitution of the State and of the United States. 
It was then held that the act in question, if en- 
forced, would substantially change the contract, 
and transfer the whole power of government of 
the College from trustees appointed according to 
the will of the founder, to the executive of New 
Hampshire. 

Mr. Justice Story delivered an opinion to the 
same effect, which contains one passage of especial 
interest at the present time. 

" It is a principle of the common law, which has been 
recognized as well in this as in other courts, that the division 
of an empire works no forfeiture of previously vested rights 
of property." 

This maxim is equally consistent with the com- 
mon-sense of mankind, and the maxims of eternal 
justice. 

In this connection it should be added that the 
effect of the reservation by the State of the right 

' 4 Wheaton, pages 518-644. 



26 Daniel Webster 

to alter, modify or repeal the charter of a corpora- 
tion (which has since the Dartmouth College de- 
cision been frequent) has often become a subject 
of consideration by the courts. The limit of this 
reservation is well stated by the Supreme Court of 
the United States in Miller vs. The State ^: 

" Power to legislate, founded upon such a reservation in 
the charter of a private corporation, is certainly not without 
limit, and it may well be admitted that it cannot be exercised 
to take away or destroy rights acquired by virtue of such a 
charter, and which by a legitimate use of the powers granted 
have become vested in the corporation." 

In People m. O'Brien^ it was held by the New 
York Court of Appeals : 

" That a franchise to construct and operate a railroad, was 
property, and transferable as such. That while the Legisla- 
ture under the reservation under the constitution in the State of 
New York might repeal and dissolve the corporation, it could 
not deprive the creditors and stockholders of the corporation of 
their interest in this franchise, and that therefore this franchise 
would pass to a receiver of the corporation." 

A curious illustration of Mr. Webster's argument, 
that if abuses were found to exist in corporate 
management the Legislature had ample power to 
deal with them, is to be found in the legislation of 
New York in reference to taxes upon corporate 
franchises.^ No doubt in many cases such fran- 
chises have been granted upon an inadequate 

' 15 Wallace, 478. 
« III N. Y., I. 

^ People ex r^/ Metropolitan St. R. Co. vs. Tax Commissioners, 174 N. 
Y., 417. 



Dartmouth College Case 27 

consideration. It is obvious that the smaller the 
consideration for a particular franchise, the greater 
is the value to the corporation possessing it. 
Therefore, the Legislature, by authorizing the tax- 
ing a franchise at its full value, can redress the 
injustice of the original grant. 

In closing this chapter, two accounts of the argu- 
ment in this case, hitherto unpublished, are given. 
The first is from a manuscript of Judge Story in 
the Congressional Library at Washington, appar- 
ently prepared as a review of a volume of Webster's 
speeches, published in 1830. The second is from 
a letter of Webster to Wirt, which the author has 

received from a descendant of the great Attorney- 
General. 

" It was in the year 1818 that an occasion occurred, which 
is as memorable as any in the professional life of Mr. Webster, 
and brought him before the nation, if not in a new light, at 
least in a more striking light than any in which he had hitherto 
been seen. We allude to his argument in the case of the 
Trustees of Dartmouth College vs. Woodward, before the 
Supreme Court of the U. S. at the Jan'y Term of that year, 
which is reported in the volume now before us (pp. no et seq.). 
That case was in itself full of deepest interest, and as impor- 
tant in its principles as any which belongs to our judicial 
annals. Few cases are better known to the public; few are 
of more varied and general application; few at the time at- 
tracted a more intense attention, and probably few will retain, 
so long as law continues to be a science, a more permanent 
and enduring celebrity. It was originally commenced in the 
State Court of New Hampshire, and having received an ad- 
judication there in the highest State tribunal unfavorable to the 
College, it was carried by a writ of error for a final decision to 
the Supreme Court. The pecuniary, and personal, and political 



28 Daniel Webster 

interests in it were of no small magnitude. But the extent 
to which the principles involved in it touched the rights of 
property, private and charitable, as well as the extent to which 
a claim to exercise legislation over literary and other corpora- 
tions on the part of state sovereignty could be maintained with 
reference to the prohibitions of the constitution of the United 
States gave it an importance so paramount, that every other 
consideration seemed at the moment to be of no significance. 
The cause had been argued with uncommon ability in the state 
court, and a judgment supported with great ingenuity and 
strength had there been pronounced, which gave to the State 
Legislature an absolute discretionary control over all the cor- 
porate rights of the college. In the state court the cause had 
been argued by Mr. Webster in conjunction with very eminent 
associates — Mr. Jeremiah Smith, formerly Chief Justice of the 
State, {clarum et venerabile nometi) a man whose depth of re- 
search and sagacity had made him equal to the labors of any 
station, and Mr. Jeremiah Mason, a man of such rare en- 
dowments and acuteness, that it is not easy to pronounce who 
is his superior. Yet in the presence of such associates Mr. 
Webster (who was much their junior) was admitted by the 
common consent of the bar to have made a speech in the State 
Tribunal not unworthy to the place by the side of those of his 
colleagues. The argument was supposed to have been ex- 
hausted; and it was thought scarcely possible to give it in 
point of novelty or force an aspect more imposing than it had 
then assumed. And for Mr. Webster not to surpass his former 
exertions upon a re-argument, was, considering the excited 
state of the public mind, to hazard everything but the fruits 
of victory. Under such circumstances, it was not unnatural to 
suppose that Mr. Webster should have felt the discouraging 
influence of his prior fame travelling with him to Washington. 
He was not indeed a novus hospes in the Supreme Court, hav- 
ing (if our memory does not deceive us) argued, some years 
before, one or two causes there, which did not however bring 
into play the full powers of his mind (The Grotius, 9 Cranch 
R., 368, was argued by him in 1815). 

"Public expectation was keenly alive; and accordingly on 



Dartmouth College Case 29 

the day set for the argument a large assemblage of ladies, of 
eminent lawyers, and of distinguished statesmen, filled the 
Court Room. Mr. Webster opened the cause for the plfs in 
error, giving to his accomplished colleague Mr. Hopkinson 
(now Judge Hopkinson) the close. Mr. Holmes and Mr. 
Wirt were the opposing counsel and in all respects adversaries 
worthy of the cause. The printed speech of Mr. Webster is 
now before the public; and it may be thought wholly unneces- 
sary to describe its character.' But it is impossible in any 
written speech to give the form and impress, the manner and 
the expression, glowing zeal, the brilliant terms of diction, the 
spontaneous bursts of eloquence, the polished language of re- 
buke, 'severe in beauty,' the sparkling eye, the quivering lip, 
the speaking gesture, the ever changing, and ever moving tones 
of the voice, which add such strength and pathos, and capti- 
vating enchantment, to the orator as his words flow rapidly on 
during actual delivery. It is then that we hear, and see and 
feel the living and present power of his thoughts. It is then 
that he terrifies us by his instant appeals, or melts us by his 
touches of nature, and draws us down the willing slaves of his 
reasoning, or bears us aloft to contemplations which seem to 
reach the flaming boundaries of time and space. Those, who 
were present at the argument of which we are speaking, will 
readily understand our meaning. They cannot but remember 
with what decorous deference he began to unfold the topics of 
his arguments, and the lucid order and elegant arrangement, 
by which each progressive position sustained and illustrated 
every other. He began by unfolding the facts in that brief 
but exact manner, for which he is so remarkable; and arriving 
at the points, for which he meant to contend, he first presented 
them in their general bearing and aspect; and then proceeding 
to the more minute analysis, he brought out into singular 
felicity and clearness all the various learning, from judicial 
authorities, from historical archives, from parliamentary de- 
bates, from elementary writers, which could illustrate and 
fortify his grounds. As he went on he kindled into more 

' The peroration of this argument as reported by Chauncey A. Goodrich 
is printed in vol. xv., Webster's Writings and Speeches p. 9. 



30 Daniel Webster 

energetic action, and if one may so say, he scintillated at every 
step. There was an earnestness of manner, and a depth of 
research, and a potency of phrase, which at once convinced 
you that his whole soul was in the cause; and that he had 
meditated over it in the deep silence of the night and studied 
it in the broad sunshine of the day. At times his voice rose 
almost into startling impetuosity. It was the struggle of the 
giant to relieve the incumbent pressure of his thoughts, to de- 
liver over the strong workings of his soul, and to uproot the 
very foundations of the opposing argument. There was breath- 
less silence in the audience. Even the eagerness to hear 
seemed at times checked by a present sense of overwhelming 
reasoning. It was a relief even to gain in his momentary 
pauses some short interval of repose from the intense stretch 
of thought, by which the mind was irresistibly driven. And 
when he came to his peroration, there was in his whole air and 
manner, in the fiery flashings of his eye, the darkness of his 
contracted brow, the sudden and flying flushes of his cheeks, 
the quivering and scarcely manageable movements of his lips, 
in the deep guttural tones of his voice, in the struggle to sup- 
press his own emotions, in the almost convulsive clenchings of 
his hands without a seeming consciousness of the act, there 
was in these things what gave to his oratory an almost super- 
human influence. There was a solemn grandeur in every 
thought, mixed up with such pathetic tenderness and refine- 
ment, such beautiful allusions to the past, the present, and the 
future, such a scorn of artifice, and fervor, such an appeal to 
all the moral and religious feelings of many, to the lover of 
learning and literature, to the persuasive precepts of the law, 
to the reverence for justice, to all that can exalt the under- 
standing and sensify the heart, that it was impossible to listen 
without increasing astonishment at the profound reaches of the 
human intellect, and without a deep sense of the divinity that 
stirs within us. There was a painful anxiety towards the close. 
The whole audience had been wrought up to the highest excite- 
ment; many were dissolved in tears; many betrayed the most 
agitating mental struggles; many were sinking under exhaust- 
ing efforts to conceal their own emotion. When Mr. Webster 



Dartmouth College Case 31 

ceased to speak, it was some minutes before any one seemed 
inclined to break the silence. The whole seemed but an 
agonizing dream, from which the audience was slowly and 
almost unconsciously awakening. 

"Such were the circumstances under which Webster de- 
livered his argument in the Dartmouth College case. The 
printed argument prepared months afterwards in the cold re- 
tirement of the closet, and with no assistance except the im- 
perfect notes, and the faded memory of the speaker himself, 
gives no adequate idea of the eloquence, or sudden blazes of 
thought with which it abounded. It is true that the outline 
of the legal reasoning and authorities is there; and the general 
course of the topics is pursued with sufficient fidelity and ex- 
actness. But we miss everything that was peculiar to the scene 
and the occasion. We miss the spirit, the fervor, and the 
masculine earnestness, which gave to the very words a potency, 
and emphasis, before unknown. 

" This argument was decisive of the future professional 
reputation of Mr. Webster. It elevated him at once to the 
first rank, and to the foremost competitors in that rank; the 
post which he has ever since maintained with increasing fame, 
and with an unquestioned title. It would not perhaps, be too 
much to say, that it gave a new direction to his own hopes and 
wishes. It probably led to the measure which he soon after- 
wards adopted of transferring himself to a wider sphere of 
professional exertion ; and it gave to the metropolis of Massa- 
chusetts one whom she has been proud to honor with her con- 
fidence, and satisfied to claim as her advocate. It should 
perhaps be added for the benefit of distant readers, that the 
judgment of the state court was reversed in 1819, and the 
college reinstated in its original rights under its former charter. 

" From this period, for it may be as well in this connection 
to follow out what we have to say in respect to Mr. Webster's 
professional career, his attendance on the Supreme Court was 
almost constantly secured by retainers in the most important 
causes. Up to this very hour in which we write, the circle of 
his business of this sort has been continually enlarging; and 
has never been exceeded, if it has been equalled by that of any 



32 Daniel Webster 

other lawyer in the national forum. He naturally succeeded 
to that place at the bar which was left vacant by the death of 
that very eminent lawyer, the late William Pinkney, in 1822." 

This ends that portion of the manuscript which 
refers to the Dartmouth College argument. The 
following is Webster's letter to Wirt : 

" Boston, April 5th, 1818. 
"Sir— 

" I returned recently from a little visit into N. Hampshire, 
where I learned the existence of a report which represented 
me as having said that the deficiencies in my own argument, 
in the cause about Dartm'o College were supplied by your 
argument. 

" I hope you suppose me incapable of talking so ridiculously. 
I should have taken no notice of the silly falsehood, had I not 
learned that it had been made the subject of a communication 
to you. This induced me to write to you, for the purpose of 
giving it a direct and emphatic contradiction. No man ever 
heard such a remark from me, or any remark in any degree 
like it. I am sure, if our professional labors should bring us 
often together, I shall find enough to do to answer your argu- 
ments, and I am equally sure that I shall have no inclination 
to misrepresent them. 

" 1 have, of course, been often asked about the argument 
of the Atty. Gen'l, in the case alluded to. 1 have spoken 
of it frankly, and on many occasions and to various people. 
It is the universal opinion, in this quarter, among all those who 
have inquired or heard about the cause, that that argument 
was a fillip able, and most eloqiietit exposition of the rights of 
the Defendant. I must leave it to you to infer, whether this 
general sentiment is in concurrence with my own uniform dec- 
larations on the subject, or whether it contradicts them. I 
will add, that in my opinion, no future discussion of the ques- 
tions involved in the cause, either at the Bar, or on the Bench, 
will bring forth, on the part of the Defendant, any important 



Dartmouth College Case 33 

idea which was not argued, expanded, and pressed, in the 
argument alluded to. 

" I beg your pardon for the trouble of this letter, and hope 
you will ascribe it to my desire of not being misrepresented to 
you. I hope also you will think me not quite weak enough 
to depreciate the power of an adversary. If conquered, this 
would but increase the mortification of defeat. If conquering, 
it would take away the glory of victory. 

" In victory, or defeat, none but a fool could boast that he 
was warring, not with giants, but with pigmies. 

" Very truly, 

" Yr. Ob't serv't, 

" Dan'l Webster. 
"William Wirt, Esquire, 

"Attorney General of U. S., 
"Washington." ' 

' There are many other indications in Webster's correspondence of his 
cordial recognition and appreciation of the ability of his brethren of the 
bar. See his letter to Chief Justice Smith, January 9, 1818, Private Cor- 
respondence, vol. i., p. 268, and another letter describing the argument of 
this case, ibid., p. 276. 
3 



CHAPTER IV 

SUPREMACY OF THE NATIONAL GOVERNMENT POWER 

TO CHARTER A BANK MCCULLOCH VS. MARYLAND 

The next case of great importance in which Mr. 
Webster appeared before the Supreme Court was 
McCulloch against the State of Maryland.^ This 
case involved the consideration of the character of 
the Constitution. The question from the first had 
been whether it was to be construed Hberally or 
strictly ; whether it was the duty of a court, and 
indeed of all branches of the government, to deal 
with it as an instrument containing general grants 
of power for the purpose of endowing the new 
central government created by it with ample au- 
thority for all its needs, or whether it should 
be considered as a bargain between independent 
states, in which each had surrendered somewhat 
reluctantly a certain portion of power, but desired 
to retain as much as possible, and was, therefore, 
unwilling to admit that anything, not strictly nomi- 
nated in the bond, was included in it. 

At the second session of the first Congress ^ a 
National Bank was chartered. The act was ap- 

- Reported 4 Wheaton, 316. 

^ Act of February 25, 1791, c. 84. 

34 



United States National Bank 35 

proved by Washington. The charter expired in 
181 1, and was not renewed. 

During the War of 181 2, the financial condition 
of the country became such that a central bank 
was a public necessity. Mr. Webster was then a 
member of the House of Representatives, and in- 
sisted strenuously that any bank which might be 
incorporated should be incorporated on sound 
financial principles, should be required to redeem 
its notes in specie, and should not be under obliga- 
tion to loan fixed amounts in paper to the govern- 
ment. To use his own language in his speech in 
the House of Representatives, January 2, 1815^ : 

" Something must be discovered which has hitherto escaped 
the observation of mankind, before you can give to paper in- 
tended for circulation the value of a metallic currency, any 
longer than it represents that currency, and is convertible 
into it, at the will of the holder. The paper of this bank, if 
you make it, will be depreciated for the same reason that the 
paper of other banks that have gone before it, and of those 
which now exist around us, has been depreciated, because it 
is not to pay specie for its notes," 

The bill was lost, and another bill introduced in 
the following Congress was amended so as to 
strike out the authority to the Bank to suspend 
specie payments. As amended, it passed, and thus, 
in 1816, the second Bank of the United States 
came into beinor. This Bank was authorized to 
establish branches in the different States, and it 
did establish a branch in Baltimore in 181 7. 

The State banks, some of which had been in- 

' Webster's Works, vol. iii., p. 43. 



3^ Daniel Webster 

corporated after the refusal of Congress to extend 
the charter of the first National Bank, found the 
competition of the new institution embarrassing. 
Accordingly, in February, 1818, the State of Mary- 
land passed an act to tax all banks and branches of 
banks which were not chartered by that State, but 
did business within its borders. The tax was im- 
posed in the form of stamps, which banks subject 
to its provisions were required to impress upon 
commercial obligations issued within the State of 
Maryland. McCuUoch, the cashier of the Balti- 
more Branch Bank, was indicted and convicted for 
a violation of the provisions of the Maryland law. 
Its validity was sustained by the Maryland courts, 
and a writ of error was sued out from the Supreme 
Court of the United States. The case was argfued 
by Webster, Wirt and Pinkney for the plaintiff in 
error, and by Hopkinson, Jones and Martin for the 
State. Martin was one of the most learned law- 
yers of his time, and Wirt and Pinkney two of the 
most eloquent, Hopkinson had been associated 
with Webster in the Dartmouth College case. 

It was felt that this new cause was of impor- 
tance equal to the last named. The discussion at 
the bar continued from the twenty-second to the 
twenty-seventh of February, and from the first to 
the third of March. Webster's argument is not 
contained in the first edition of his collected works, 
but an abstract of it is to be found in Wheaton's 
Reports, and it is now reprinted in the national 
edition of 1903.^ It contains the statement of the 

' Webster's Writings and Speeches, vol. xv., p. 261. 



United States National Bank Z7 

famous proposition that "an unlimited power to 
tax involves necessarily a power to destroy." ^ 

To use Mr. Webster's phrase in his speech in 
the Senate on an amendment to the bill for renew- 
ing the charter of the Bank of the United States- : 

" A power of taxation without fixed limits and without 
guards, is a power to embarrass, a power to oppress, a 
power to expel, a power to destroy." 

In support of the proposition that individual 
States had no power to tax an instrument of the 
national government, it was necessary to maintain, 
and Mr. Webster did maintain, that the powers of 
the separate States were not only limited by the 
express prohibitions of the Constitution, but that 
such limitation could be inferred, by fair implica- 
tion, from the grant of powers to the general gov- 
ernment which were inconsistent with the exercise 
of like authority by the States. It will be seen at 
once that this proposition was of the very first im- 
portance. For if it was within the lawful authority 
of the separate States, by adverse legislation, to 
limit, check and harass the exercise by the general 
government of the powers granted to it, the latter 
would be shorn of the authority necessary to its 
complete efficiency. 

At first sight it would seem reasonably clear that 
an institution doing business in a State, and receiv- 
ing the benefit of protection from the State gov- 
ernment, should directly or indirectly pay its fair 

' Webster's Writings and Speeches, vol. xv., p. 266. 
' Webster's Works, vol. iii., p. 408. 



38 Daniel Webster 

proportion of the expenses of that government. 
As matter of equity, this is undoubtedly true, and 
when the act for the incorporation of national 
banks was passed during the Civil War in 1862, 
the consent of Congress was given to the taxation 
of the interest of the stockholders in the stock 
of each bank by the State in which it was located, 
provided such taxation was not at a greater rate 
than that imposed upon capital invested in other 
financial enterprises. 

A proposition to authorize a tax upon the 
Bank itself or its branches was considered in Con- 
gress when the charter of the second Bank of 
the United States was before it for consideration. 
This was successfully opposed by Mr. Webster, 
but he conceded that the interest of stockholders 
might properly be taxed. To use his own words : ^ 

" Every stockholder in the Bank is liable to be taxed for his 
property therein by the State of which he is a citizen." 

The need of such a bank at that time was so 
pressing, and the disadvantages under which the 
country was suffering from the depreciation of 
local issues of circulating notes and the discounts 
to which they were subject at even a small distance 
from the place of issue were so great, that Congress 
was naturally reluctant to impose upon the new in-, 
stitution which it was creating, any burden that 
was not absolutely necessary. But it was of the 
first importance that the control over this subject 
should remain in the hands of Congress. If a 

' Webster's Works, vol. iii., p. 411. 



United States National Bank 



39 



State might tax a bank incorporated by Congress 
why might it not tax a post-office building ''or a 
federal court-house ? If it had the general power 
to tax property used for federal purposes, it could 
exercise that power to discriminate acrainst the pro- 
perty of the federal government. I n short, when the 
matter is carefully considered, it will appear that the 
whole character of the general government would 
have been altered, if the decision in M'Culloch 
against State of Maryland had been the reverse 
of what it was. It would have left the general 
government, what Calhoun afterwards claimed it 
to be, a mere agent of the State governments for 
a few specifically defined purposes, subject prac- 
tically in most, if not all, respects to the control 
of its principals. As these principals were many, 
and often did not agree, such a conclusion would 
have left the Constitution a rope of sand. The 
question on the power of taxation was therefore 
really of much greater importance than the other 
which was also argued in the case, which was 
whether the Constitution conferred on Congress, 
by implication, the power to charter a bank. 

Still, on the latter point also, the principle of 
construction which Mr. Webster advocated was 
fundamental. He states it thus ^ : 

" Congress by the Constitution is invested with certain pow- 
ers; and as to the objects and within the scope of these powers, 
it is sovereign. Even without the aid of the general clause in 
the constitution empowering Congress to pass all necessary 
and proper laws for carrying its powers into execution, the 

'4 Wheaton, p. 323 ; Webster's Wriiings and Speeches, vol. xv., p. 262. 



40 Daniel Webster 

grant of powers itself necessarily implies a grant of all usual 
and suitable means for the execution of the powers granted." 

His argument on this occasion is better pre- 
served in his speech deUvered July ii, 1832, upon 
Jackson's veto of the bill to extend the charter of 
the Bank of the United States. 

"According to that mode of construing the Constitution 
which was adopted by Congress in 1791, and approved by 
Washington, and which was sanctioned by the judgment of the 
Supreme Court, and affirmed by the practice of nearly forty 
years, the question upon the constitutionality of the bank, in- 
volve two inquiries. First, whether a bank, in its general 
character and with regard to the general objects with which 
banks are usually connected be, in itself, a fit means, a suitable 
instrument to carry into effect the powers granted to the gov- 
ernment. If it be so, then the second, and the only other ques- 
tion is, whether the powers given in a particular charter are 
appropriate for a bank. If they are powers which are appro- 
priate for a bank, powers which Congress may fairly consider 
to be useful to the bank or the country, then Congress may 
confer these powers; because the discretion to be exercised in 
framing the constitution of the bank belongs to Congress. 
One man may think the granted powers not indispensable to the 
particular bank; another may suppose them injudicious or in- 
jurious; a third may imagine that other powers, if granted in 
their stead, would be more beneficial ; but all these are matters 
of expediency, about which men may differ; and the power of 
deciding upon them belongs to Congress." ' 

" The truth is, Mr. President, that if the general object, the 
subject-matter, properly belongs to Congress, all its incidents 
belong to Congress also. If Congress is to establish post- 
offices and post-roads, it may, for that end, adopt one set of 
regulations or another; and either would be constitutional. 
So the details of one bank are as constitutional as those of an- 

' Webster's Works, vol. iii., p. 437. 



United States National Bank 41 

other, if they are confined fairly and honestly to the purpose 
of organizing the institution, and rendering it useful. One 
batik is as constitutional as another bank. If Congress pos- 
sesses the power to make a bank, it possesses the power to 
make it efficient, and competent to produce the good expected 
from it. It may clothe it with all such power and privileges 
not otherwise inconsistent with the Constitution, as may be 
necessary in its own judgment to make it what government 
deems it should be. It may confer on it such immunities as 
may induce individuals to become stockholders, and to furnish 
the capital; and since the extent of these immunities and privi- 
leges is matter of discretion, and matter of opinion, Congress 
only can decide it, because Congress alone can frame or grant 
the Charter." ' 

The case was so fully argued that the Court no 
doubt disposed of it immediately upon the conclu- 
sion of the argument. Four days after this, and 
on the 7th of March, 18 19, the opinion of the Court 
was delivered by Chief Justice Marshall. Justices 
Washington, Johnson, Brockholst Livingston, Du- 
val and Story concurred. The decision follows 
very closely Mr. Webster's argument. In the re- 
port the latter is stated concisely. The opinion 
elaborates. After pointing out that the Constitu- 
tion was adopted by the people and not by the 
State legislatures, and that therefore It could not 
be said that the national government was the 
creature of the States, but that on the contrary It 
was the child of the people, the Chief Justice pro- 
ceeds (p. 405) : 

The government of the Union, though limited in its powers, 
is supreme within its sphere of action. This would seem to 
result necessarily from its nature. It is the government of all; 
' Webster's Works, vol. iii., p. 441. 



42 Daniel Webster 

its powers are delegated by all; it represents all, and acts for 
all." 

And then the Chief Justice quotes the section 
on the supremacy of the Constitution, and proceeds 
(p. 409) : 

" The government which has a right to do an act, and has 
imposed on it the duty of performing that act, must, accord- 
ing to the dictates of reason, be allowed to select the means." 

Again, in considering the meaning of the word 
"necessary," he says (p. 419) : 

"This word, then, like others, is used in various senses; 
and, in its construction, the subject, the context, the intention 
of the person using them, are all to be taken into view." 

Again (at p. 421) he proceeds : 

"We admit, as all must admit, that the powers of the 
government are limited, and that its limits are not to be 
transcended. But we think the sound construction of the 
constitution must allow to the national legislature that discre- 
tion, with respect to the means by which the powers it confers 
are to be carried into execution, which will enable that body 
to perform the high duties assigned to it, in the manner most 
beneficial to the people. Let the end be legitimate, let it be 
within the scope of the Constitution, and all means which are 
appropriate, which are plainly adapted to that end, which are 
not prohibited, but consist with the letter and spirit of the 
Constitution, are constitutional." 

Having thus disposed of the arguments against 
the constitutionaHty of the charter, he deals with 
the question as to the power of the State, and 
concludes (p. 431) : 

" That the power to tax involves the power to destroy; that 



United States National Bank 43 

the power to destroy may defeat and render useless the power 
to create; that there is a plain repugnance, in conferring on 
one government a power to control the constitutional measures 
of another, which other, with respect to those very measures, 
IS declared to be supreme over that which exerts the control,' 
are propositions not to be denied." ' 

The greater part of the banking business of the 
country is now carried on by national banks. For 
over forty years they have not only done this, but 
have furnished a circulating medium, equally good 
in every part of the country, and redeemable 
everywhere in legal tender, upon demand. No 
note holder has ever lost one dollar by the failure 
of one of these banks. Any one who remembers 
(as the author well does) the contrast between this 
orderly and well-regulated financial condition and 

the chaotic state of our currency before the war 

notes of New York City banks not current in many 
parts of New England— discounts of one, two or 
three per cent, charged by brokers in handling in 
one State the notes issued in another — constant 
counterfeits, hard to detect and requiring the use 
of a large volume (known, if memory serves the 
author, as Thompson's Cotmterfeit Ba7ik-Note De- 
tector') — will in some degree appreciate the incalcu- 
lable value of the service rendered to the country 
by Daniel Webster, in the masterly argument 
which led the court to this conclusion. 

' This famous phrase of Webster's, " The power to tax is the power to de- 
stroy," was repeated by Mr. Justice Brewer in Fairbank vs. United States, 
181 U. S., 283, 291. In this case the rule of construction applied in 
McCulloch vs. Maryland to the grant to Congress of certain powers, is ex- 
tended to the prohibitions in the Constitution. 



44 Daniel Webster 

The question of taxation of the stock in national 
banks is one of such general interest that we con- 
clude this chapter with two as yet unpublished 
documents, which throw light upon the principles 
which must control in dealing with the subject, and 
which have since been adopted by the Supreme 
Court in its decision upon the effect of the present 
national banking law. 

The first is an opinion given by Mr. Webster to 
Enoch Parsons, July 29, 1830^ : 

" Tax on United States Bank Stock. 

" In the case of M'Culloch vs. Maryland," Judge Marshall 
in the conclusion of his opinion, says, 'We are unanimously 
of opinion, that the law passed by the Legislature of Maryland, 
imposing a tax on the Bank of The United States, is unconsti- 
tutional and void'; he then proceeds in the following words: 
' This opinion does not deprive the States of any resources 
they originally possessed. It does not extend to a tax paid by 
the real property of the Bank, in common with the other real 
property within the State, nor to a tax imposed on the interest 
which the citizens of Maryland may hold in this institution in 
common with other property of the same description throughout 
the State.' ' 

" In the case of The City Council of Charlestown,* it was 
determined by The Sup. Court ' that a tax imposed by a law 
of any State of The United States, or under the authority of 
such a law on stock issued for loans made to The United States 
is unconstitutional.' 

" It would seem from the above cases, that, if the Legis- 
lature of Connecticut have taxed the income of U. S. Bank 

' The draft in Mr. Webster's own handwriting is in the collection of 
Websteriana, Library N. H. Hist, Soc, vol. v., p. 27. 
' 4 Wheat., 316. 
' 4 Wheat., 436. 
* 2 Peters, S. C. Rep., 449. 



United States National Bank 45 

Stock ' in common with other property of the same description 
throughout the State' then the law authorizing such tax is not 
unconstitutional; but, if the law of the State specifies this 
particular property, stock in United States Bank, eo nomine 
and assesses a peculiar tax upon it, such a law is unconstitu- 
tional. — 

" I have made inquiry of a gentleman, who was formerly 
assessor of Boston, respecting the practice in relation to assess- 
ing property in this city; he informed me that in estimating a 
person's property, stock in the United States Bank was always 
considered the same as any other stock, or personal property, 
and the income arising therefrom, assessed in common with all 
the other income of the persons to be taxed. — 

"D. Webster." 

The second is the following letter from Chief 
Justice Marshall to Mr. Webster^ : 

" Richmond June i6th 1832. 
" My Dear Sir 

" I thank you very sincerely for the copy with which you 

have favored me of your speeches on the bill for renewing the 

charter of the bank of the United States. I need not say that 

I consider an accommodation of the tariff question itself as 

scarcely more interesting to our country than the passage of 

that bill. Your argument presents the subject in its strongest 

point of view, and to me seems unanswerable. Mr. Ritchie in 

his Enquirer informs the people of Virginia that Mr. Tazewell 

has refuted you completely. This he may have done in the 

opinion of Mr. Ritchie. I have not seen Mr. Tazewell's 

speech and do not understand from the Enquirer whether his 

refutation applies to your speech in favor ot the bill or to that 

against the amendment offered by Mr. Moor. By the way, 

your argument against that amendment is founded on an idea 

which is to me quite novel. I had often heard it advanced 

that the states have no constitutional power to establish banks 

of circulation — but never that Congress might not introduce 

' The original of this letter is in the Library of the New Hampshire His- 
torical Society. 



46 Daniel Webster 

into the charter a restraining principle which might prohibit 
branches altogether, or require the assent of a state to their 
introduction; or a principle which might subject them to state 
taxation. This may be considered not as granting power of 
taxation to a state, for a state possesses that power; but as 
withdrawing a bar which the constitution opposes to the ex- 
ercise of this power over a franchise created by Congress for 
national purposes, unless the constitution of the franchise, in 
its creation, has this quality ingrafted on it. 

" I am however far from undertaking to dissent from your 
proposition. I only say it is new, and I ponder on it. 

" With great and respectful esteem 

" I am your obedt 

" J Marshall 

" I only meant to express my obligation for your attention 
and I have betrayed myself into the politics of the day." ' 

' As long ago as March 28, 1814, Webster wrote of the great Chief Jus- 
tice : " I have never seen a man of whose intellect I had a higher opinion." 



CHAPTER V 

INTERSTATE COMMERCE GIBBONS VS. OGDEN 

Important as were the cases to which reference 
has already been had, it may be doubted whether 
either of them was of more consequence to the 
country than the decision in Gibbons vs. Oo-den.^ 

In 1807, Robert Fulton had constructed a steam- 
boat named the Clermont (after Chancellor Living- 
ston's country-seat on the banks of the Hudson), 
which made a successful voyage from New York to 
Albany, to the great astonishment of the people 
on the banks of the river. Afterwards, when slow 
communication by coach and sailing vessel had 
made the great event known abroad, it became 
the admiration of the civilized world. 

John Fitch had previously made a small steam- 
boat which had moved about on the Collect Pond 
in New York City, where now the City Prison is 
constructed. The Legislature, in 1787, granted to 
him the sole and exclusive ricrht of making- and 
using every kind of boat or vessel impelled by steam 
in all the waters within the jurisdiction of New York 
for fourteen years. But Fitch had not the capital, 
and perhaps not the skill, to develop his invention 

' 9 Wheaton, i. 
47 



48 Daniel Webster 

and put it in practical operation. Meanwhile, 
Robert Fulton, a native of Pennsylvania, a son of 
an Irish immigrant, had been studying the question 
of the steamboat, and had gone to France and en- 
deavored to interest the First Consul in his plan. 
This was referred to the Institute for examination, 
but that learned body did not seem to think the 
subject worth its attention. While Fulton was 
thus engaged, the United States sent Robert R. 
Livino-ston as Minister to France. He had been 
experimenting in New York in the same direction as 
Fulton. In 1798, he had obtained from the Legis- 
lature of that State an act which on the sugges- 
tion that " Fitch was dead or had withdrawn from 
the State without having made any attempt to 
use his privilege," repealed the grant to him and 
conferred a similar privilege on Livingston for 
the term of twenty years. Livingston met Fulton 
and the two inventors put their heads together, 
each benefited by what the other had done, and 
the result was an application to the Legislature 
of New York for an additional grant to them 
both. This was made on the 5th day of April, 
1803, and gave to them both the monopoly 
of the use of the steamboat in New York and 
all its waters for twenty years from the passing 
of the act. After the successful trip of the Cler- 
mont in 1807, another act was passed extending 
the monopoly " five years for every additional 
boat," the whole duration, however, not to ex- 
ceed thirty years ; and forbidding any and all per- 
sons to navigate the waters of the State with any 



Interstate Commerce 49 

steamboat or vessel impelled by steam, without a 
license from Livingston and Fulton, under penalty 
of forfeiture of the boat or vessel. 

In April, 1811, a further act was passed provid- 
ing more extensive remedies, both at law and in 
equity, for enforcing the monopoly which had been 
granted to Livingston and Fulton. 

Gibbons undertook to challenge this monopoly. 
He built a steam ferry-boat which was duly en- 
rolled and licensed by the United States for carry- 
ing on all coasting trade, and employed it in that 
trade between Elizabeth in New Jersey and the 
city of New York. Ogden, who had a grant from 
Livingston and Fulton, filed a bill in the New 
York Court of Chancery to restrain Gibbons from 
the use of the boat. The Chancellor and on ap- 
peal the Court of Errors held that the acts of 
the State of New York under which Ogden claimed 
title were valid.^ Gibbons took the case to the 
Supreme Court of the United States. As Mr. 
Webster said at the beginning of his argument : 

" The laws in question, I am aware, have been deliberately 
re-enacted by the Legislature of New York; and they have also 
received the sanction, at different times, of all her judicial 
tribunals, than which there are few, if any, in the Country, 
more justly entitled to respect and deference. The disposition 
of the Court will be, undoubtedly, to support, if it can, laws 
so passed and so sanctioned. I admit, therefore, that it is 
justly expected of us that we should make out a clear case; 
and unless we do so, we cannot hope for a reversal. It should 

' The reasons for these decisions are concisely stated by Chancellor Kent, 

Comm., vol. i., p. 433. 
4 



50 Daniel Webster 

be remembered, however, that the whole of this branch of 
power, as exercised by this Court, is a power of revision. The 
question must be decided by the State Courts, and decided in 
a particular manner, before it can be brought here at all. Such 
decisions alone give this Court jurisdiction; and therefore 
while they are to be respected as the judgments of learned 
judges, they are yet in the condition of all decisions from 
which the law allows an appeal." 

He then proceeded in words which cannot be 
abridged, to state the position of the controversy : 

"By the law of New York, no one can navigate the Bay 
of New York, the North River, the Sound, the lakes, or any 
of the waters of the State, by steam vessels, without a license 
from the grantees of New York, under penalty of forfeiture of 
the vessel. 

" By the law of the neighboring State of Connecticut, no 
one can enter her waters with a steam vessel having such a 
license. 

"By the law of New Jersey, if any citizen of that State 
shall be restrained, under the New York law, from using steam- 
boats between the ancient shores of New Jersey and New York, 
he shall be entitled to an action for damages, in New Jersey, 
with treble costs against the party who thus restrains or im- 
pedes him under the law of New York! This act of New 
Jersey is called an act of retortion against the illegal and op- 
pressive legislation of New York; and seems to be defended 
on those grounds of public law which justify reprisals between 
independent States. 

"It will hardly be contended, that all these acts are con- 
sistent with the laws and Constitution of the United States. 
If there is no power in the general government to control this 
extreme belligerent legislation of the States, the powers of the 
government are essentially deficient in a most important and 
interesting particular. The present controversy respects the 
earliest of these State laws, those of New York. On these, 
this Court is now to pronounce; and if they should be declared 



Interstate Commerce 51 

to be valid and operative, I hope somebody will point out 
where the State right stops, and on what grounds the acts of 
other States are to be held inoperative and void. 

"It maybe well to state again their general purport and 
effect, and the purport and effect of the other State laws which 
have been enacted by way of retaliation. 

" A steam vessel of any description, going to New York, is 
forfeited to the representatives of Livingston and Fulton, un- 
less she have their license. Going from New York or else- 
where to Connecticut, she is prohibited from entering the 
waters of that State, if she have such license. 

" If the representatives of Livingston and Fulton in New 
York carry into effect, by judicial process, the provisions of 
the New York laws, against any citizen of New Jersey, they 
expose themselves to a statute action in New Jersey for all 
damages, and treble costs." 

" The New York laws extend to all steam vessels; to steam 
frigates, steam ferry-boats, and all intermediate classes. They 
extend to public as well as private ships; and to vessels em- 
ployed in foreign commerce, as well as to those employed in 
the coasting trade. 

" The remedy is as summary as the grant itself is ample; 
for immediate confiscation, without seizure, trial, or judgmenjt, 
is the penalty of infringement." ' 

Mr. Webster then proceeded to argue that the 
power of Congress to regulate commerce was com- 
plete and entire and to a certain extent necessarily 
exclusive. 

The aro-ument had been that there was a concur- 
rent power in the States until Congress should 
exercise the power, which might, when exercised, 
exclude State legislation. To this Mr. Webster 
replied : 

" I do not mean to say, that all regulations which may, in 
'Webster's JVorks, vol. vi., pp. 5-7. 



52 Daniel Webster 

their operation, affect commerce, are exclusively in the power 
of Congress; but that such power as has been exercised in this 
case does not remain with the States. 

" Nothing is more complex than commerce; and in such an 
age as this, no words embrace a wider field than commercial 
regulation. Almost all the business and intercourse of life may 
be connected incidentally, more or less, with commercial 
regulations. But it is only necessary to apply to this part of 
the Constitution the well-settled rules of construction. Some 
powers are held to be exclusive in Congress, from the use of 
exclusive words in the grant; others, from the prohibitions on 
the States to exercise similar powers; and others, again, from 
the nature of the powers themselves. It has been by this 
mode of reasoning that the Court has adjudicated many im- 
portant questions; and the same mode is proper here. And, 
as some powers have been held to be exclusive, and others not 
so, under the same form of expression, from the nature of the 
different powers respectively; so where the power, on any one 
subject, is given in general words, like the power to regulate 
commerce, the true method of construction will be to consider 
of what parts the grant is composed, and which of those, from 
the nature of the thing, ought to be considered exclusive. 
The right set up in this case, under the laws of New York, is 
a monopoly. Now I think it very reasonable to say, that the 
Constitution never intended to leave with the States the power 
of granting monopolies either of trade or of navigation; and 
therefore, that as to this, the commercial power is exclusive in 
Congress.' 

" It is in vain to look for an exact and precise definition of 
the powers of Congress on several subjects. The Consti- 
tution does not undertake the task of making such exact 
definitions. In conferring powers, it proceeds by the way of 
enumeration., stating the powers conferred, one after another, 
in few words; and where the power is general or complex in 
its nature, the extent of the grant must necessarily be judged 
of, and limited, by its object, and by the nature of the 
power. * ' * 

' Webster's Works, vol. vi., p. 8. "^ Ibid., vol. vi., p. 9. 



Interstate Commerce 53 

Again he adds : 

" This doctrine of a general concurrent power in the States 
is insidious and dangerous. If it be admitted, no one can say 
where it will stop. The States may legislate, it is said, 
wherever Congress has not made a plenary exercise of its 
power. But who is to judge whether Congress has made 
this plenary exercise of power ? Congress has acted on this 
power; it has done all that it deemed wise; and are the States 
now to do whatever Congress has left undone ? Congress 
makes such rules as, in its judgment, the case requires; and 
those rules, whatever they are, constitute the system. 

" All useful regulation does not consist in restraint; and that 
which Congress sees fit to leave free is a part of its regulation, 
as much as the rest." ' 

He further argfued that the obvious intent of the 
legislation referred to was to give preference to the 
citizens of some States over those of others : 

" I do not mean here the advantages conferred by the grant 
on the grantees; but the disadvantages to which it subjects all 
the other citizens of New York. To impose an extraordinary 
tax on steam navigation visiting the ports of New York, and 
leaving it free everywhere else, is giving a preference to the 
citizens of other States over those of New York. This Con- 
gress could not do; and yet the State does it; so that this 
power, at first subordinate, then concurrent, now becomes 
paramount. 

"The people of New York have a right to be protected 
against this monopoly. It is one of the objects for which they 
agreed to this Constitution, that they should stand on equality 
in commercial regulations; and if the government should not 
insure them that, the promises made to them in its behalf 
would not be performed." * 

It was always Mr. Webster's manner, in cases 
involving constitutional questions, to argue them at 

• Webster's Works, vol. vi., p. 13. ^ Ibid., vol. vi., p. iS, 



54 Daniel Webster 

the outset on broad grounds. Thus having clearly 
stated and defined the principles which should con- 
trol the Court in deciding the case before it, he 
proceeded on a narrower line of argument which 
was open to him, namely : the contention that the 
license under the coasting laws which the United 
States had given to Gibbons was inconsistent with 
the legislation of New York, and that the latter 
must therefore give place to the former. It was 
on this ground that the case was finally decided, 
and yet the argument of the Court follows very 
closely that of Mr. Webster and adopts its funda- 
mental propositions. To use the language of the 
Court : 

" The appellant contends that this decree is erroneous, be- 
cause the laws which purport to give the exclusive privilege it 
sustains, are repugnant to the constitution and laws of the 
United States. They are said to be repugnant. 

" I. To that clause in the constitution which authorizes 
congress to regulate commerce. 

" As preliminary to the very able discussions of the consti- 
tution which we have heard from the bar, and as having some 
influence on its construction, reference has been made to the 
political situation of these States, anterior to its formation. It 
has been said that they were sovereign, were completely inde- 
pendent, and were connected with each other only by a league. 
This is true. But when these allied sovereigns converted their 
league into a government, when they converted their congress 
of ambassadors, deputed to deliberate on their common con- 
cerns, and to recommend measures of general utility, into a 
legislature, empowered to enact laws on the most interesting 
subjects, the whole character in which the States appear under- 
went a change, the extent of which must be determined by a 
fair consideration of the instrument by which that change was 
effected. 



Interstate Commerce 55 

" This instrument contains an enumeration of the powers 
expressly granted by the people to their government. It has 
been said that these powers ought to be construed strictly. 
But why ought they to be so construed ? Is there one sentence 
in the Constitution which gives countenance to this rule ? In 
the last of the enumerated powers, that which grants, expressly, 
the means for carrying all others into execution, congress is 
authorized to make 'all laws which shall be necessary and 
proper for the purpose.' But this limitation on the means 
which may be used, is not extended to the powers which are 
conferred; nor is there one sentence in the constitution which 
has been pointed out by the gentlemen at the bar, or which we 
have been able to discern, that prescribes this rule." 

" The words are: ' Congress shall have power to regulate 
commerce with foreign nations, and among the several States, 
and with the Indian Tribes.' 

"The subject to be regulated is commerce; and our Con- 
stitution being, as was aptly said at the Bar, one of enumera- 
tion and not of definition, to ascertain the extent of the power, 
it becomes necessary to settle the meaning of the word. The 
counsel for the appellee would limit it to traffic, to buying 
and selling, or the interchange of commodities, and do not ad- 
mit that it comprehends navigation. This would restrict a 
general term, applicable to many objects, to one of its sig- 
nifications. Commerce undoubtedly is traffic but it is some- 
thing more, it is intercourse. It describes the commercial 
intercourse between nations, and parts of nations, in all its 
branches, and is regulated by prescribing rules for carrying on 
that intercourse. The mind can scarcely conceive a system 
for regulating commerce between nations, which shall exclude 
all laws concerning navigation, which shall be silent on the 
admission of the vessels of the one nation into the ports of the 
other, and be confined to prescribing rules for the conduct of 
individuals in the actual employment of buying and selling, 
or of barter." ' 

" The subject is transferred to Congress and no exception 

' Gibbons vs. Ogden, 9 Wheaton, pp. 186-190. 



56 Daniel Webster 

to the grant can be admitted which is not proved by words or 
the nature of the thing." ' 

The latest statement by the court of the rule 
established in Gibbons vs. Ogden is to be found in 
the case of Atlantic & Pacific Tel. Co. vs. Phila- 
delphia,^ in which the opinion was delivered June i, 
1903 : 

" The Constitution of the United States having given to 
Congress the power to regulate commerce, not only with for- 
eign nations, but among the several States, that power is neces- 
sarily exclusive whenever the subjects of it are national in 
their character, or admit only of one uniform system, or 
plan of regulation" ^ 

Mr. Webster's own opinion of his argument in 
Gibbons vs. Ogden is to be found in a very inter- 
esting conversation reported by Harvey* : 

" ' Mr. Webster, your speech in answer to Hayne has been 
read, I think, by more intelligent persons than any speech in 
the English language.' 

" ' Oh, no,' replied he, ' I think you must be mistaken about 
that. You must remember the speeches of English orators and 

' Gibbons vs. Ogden, g Wheaton, p. 215. 

' 190 U. S., 160-162 (1903). 

^ In accordance with this rule it is held that no State or municipality can 
levy any tax, whether by license fee or otherwise, upon the doing of busi- 
ness in one State, by the citizens of another, — Caldwell vs. North Carolina, 
187 U. S., 622 (1903); — nor in any form upon traffic from one State to another 
— interstate commerce as it is called, — Hanley vs. Kansas City Southern R. 
Co., ibid.,b\l (1903). On the other hand a State may impose ordinary 
property taxes upon property within its territory, belonging to non-resi- 
dents, — Atlantic & Pacific Tel. Co. vs. Philadelphia supra ; — and may 
exercise police power over the same, and tax it to provide funds for such 
exercise, — Western Union Tel. Co. vs. Borough of New Hope, 187 U. S., 
4i9,( 1903). 

* Reminiscences of Daniel Webster, p. 140. 



Interstate Commerce 57 

statesmen were not reported as ours are; neither were the Eng- 
lish, to a great extent, a reading people. Everything that is 
worth reading and is eloquent, our people read.' 
" After a pause, he went on: 

Well, I don't know; you may be right in that. But that 
was not my best speech.' 

"I said, that, if it was not the best speech, it had the 
greatest fame. 

Well,' said he, ' I suppose it has. Nevertheless, it was 
not, in my judgment, the best speech I ever made; but, as a 
popular effort, it was undoubtedly more read than any other 
speech.' 

What do you regard as your greatest speech ? ' I asked. 
" ' My forensic efforts have been those which have pleased 
me most. The two arguments that have given me the most 
satisfaction were the arguments in the " steamboat case " and 
the Dartmouth College argument. The steamboat case, you 
remember, was a question of the constitutionality of the right 
of New York State to give a monopoly to Fulton and his heirs 
forever, of the privilege of plying the waters of the Hudson 
with his steamboats. The value of such a right was not then 
and could not have been, from the nature of the case, fully 
understood. But it seemed to me to be against the very 
essence of State rights, and a virtual dissolution of the Union 
in a commercial sense. If New York had a right to lay tolls 
upon her rivers for everybody that should pass, then all the 
other great international rivers and lakes would have the same 
right, and we could not be one as a commercial people. The 
people of New York felt that their rights were at stake in the 
contest; and their great lawyers — and they had many of them 
— were engaged on that side; the Livingstons and Clintons and 
others of like calibre. Mr. Wirt and myself were employed 
against the monopoly. When the case came to be argued be- 
fore the Supreme Court at Washington, Chief Justice Marshall 
presiding, Mr. Wirt and myself met for consultation. Mr. 
Wirt asked me upon what grounds I based my case, upon what 
clause of the Constitution. He !iad a right to ask, as he was 
my senior in years and professional fame. My reply was, that 



58 Daniel Webster 

the clause of the Constitution which ceded to the general gov- 
ernment the right to regulate commerce was that upon which 
I based my defence. Mr. Wirt's reply to that was, that he did 
not see, in that line of argument, any ground for our case to 
rest upon. I said: " Very well; what is yours ? " So he told 
me. I do not recollect what it was, but it was a totally differ- 
ent clause in which he found the ground of his argument. I 
said to him: " Mr. Wirt, I will be as frank with you as you 
have been with me, and say that I do not see the slightest 
ground to rest our case upon in your view of it." "Very 
well," replied Mr. Wirt, " let us each argue it in our own way, 
and we will find out which, if either, is right." 

" ' The case came on for argument. Mr. Wirt made one of his 
brilliant arguments before the Court. 1 followed with my view. 

" ' I can see the Chief Justice as he looked at that moment. 
Chief Justice Marshall always wrote with a quill. He never 
adopted the barbarous invention of steel pens. That abomi- 
nation had not been introduced. And always, before counsel 
began to argue, the Chief Justice would nib his pen; and then, 
when everything was ready, pulling up the sleeves of his gown, 
he would nod to the counsel who was to address him, as much 
as to say, ' 'I am ready; now you may go on." 

" ' I think I never experienced more intellectual pleasure 
than in arguing that naval question to a great man who could 
appreciate it, and take it in ; and he did take it in, as a baby 
takes in its mother's milk. 

" ' The result of the case was this: the opinion of the Court, 
as rendered by the Chief Justice, was little else than a recital 
of my argument. The Chief Justice told me that he had little 
to do but to repeat that argument, as that covered the whole 
ground. And, which was a little curious, he never referred to 
the fact that Mr. Wirt had made an argument. He did not 
speak of it once.' 

•' Then Mr. Webster added: 

" ' That was very singular. It was an accident, I think. 
Mr. Wirt was a great lawyer, and a great man. But some- 
times a man gets a kink and does n't hit right. That was one 
of the occasions. But that was nothing against Mr. Wirt.' " 



Interstate Commerce 59 

It is not often that we have a description of a 
great legal argument by two of the judges who 
heard it. In the present case we have this rare 
good fortune. In the unpublished manuscript 
from which we have before quoted, Mr. Justice 
Story thus describes Webster's argument in Gib- 
bons vs. Ogden : 

"Of Mr. Webster's argument in the opening of this case 
(for it was closed by Mr. Wirt in a speech of great splendor 
and force) it may be said to furnish as good a specimen of the 
characteristics of his mind, as any which could be named. We 
have here in as favorable a light as we could desire, his clear- 
ness and downright simplicity of statement, his vast compre- 
hensiveness of topics, his fertility in illustrations drawn from 
practical sources; his keen analysis, and suggestion of difficul- 
ties; his power of disentangling a complicated proposition, and 
resolving it in elements so plain as to reach the most common 
minds; his vigor in generalizations, planting his own argument 
behind the whole battery of his opponents; his wariness and 
caution not to betray himself by heat into untenable positions, 
or to spread his forces over useless ground. Everywhere we 
see him, as it were, fortifying himself on all sides within the 
narrowest limits for his cause with all the limitations and auali- 
fications belonging to it; yet still ready at every moment to 
center, like a skillful general, at the weak points of his adver- 
sary's position. Whoever with a view to the real difficulties 
of the case and the known ability of his opponents, shall sit 
down to the task of perusing this argument will find, that it is 
equally remarkable for profoundness and sagacity, for the 
choice, and comprehensiveness of the topics, and for the 
delicacy and tact, with which they are handled. The reader 
goes on and so naturally falls into the current of the argu- 
ment, that he thinks all quite plain and indisputable, until 
shutting the book, he attempts to frame an argument for him- 
self on the same topics and to answer his adversaries. Like 
Partridge in Tom J^ones, when he saw Garrick act, all seemed 



6o Daniel Webster 

so natural, and without effort, that he is convinced that there 
can be neither art nor address, nor genius in the affair. Yet 
it is this very power, this naturalness and plainness of remark, 
which makes Mr. Webster so irresistible to a jury." 

It is our good fortune to have another account of 
this argument from Mr. Justice Wayne. When 
Mr. Webster was in Savannah, in 1847, ^ public 
reception was given him. Mr. Justice Wayne pre- 
sided and addressed Mr. Webster. In the course of 
this address he said : 

" From one of your constitutional suggestions, every man in 
the land has been more or less benefited. We allude to it 
with the greater pleasure, because it was in a controversy, be- 
gun by a Georgian in behalf of the constitutional rights of the 
citizen. 

*' When the late Mr. Thomas Gibbons determined to hazard 
a large part of his fortune in testing the constitutionality of the 
laws of New York, limiting the navigation of the waters in 
that State to steamers belonging to a company, his own interest 
was not so much concerned as the right of every citizen to use 
a coasting license upon the waters of the United States, in 
whatever way his vessel was propelled. It was a sound view 
of the law, but not broad enough for the occasion. It is not 
unlikely that the case would have been decided upon it, if you 
had not insisted that it should be put upon the broader con- 
stitutional ground of commerce and navigation. The court 
felt the application and force of your reasoning, and it made 
a decision releasing every creek and river, lake, bay, and 
harbor in our country from the interference of monopolies, 
which had already provoked unfriendly legislation between 
some of the States, and which would have been as little favor- 
able to the interest of Fulton as they were unworthy of his 
genius." ' 

Two years later, in the course of his opinion in 

' Webster's Works, vol. ii., p 399. 



Interstate Commerce 6i 

the Passenger cases/ Mr. Justice Wayne thus 
spoke of the prior decision : 

" The case of Gibbons v. Ogden, in the extent and variety 
of learning, and in the acuteness of distinction with which it 
was argued by counsel, is not surpassed by any other case in 
the reports of courts. In the consideration given to it by the 
court, there are proofs of judicial ability, and of close and 
precise discrimination of most difficult points, ecpial to any 
other judgment on record. To my mind, every proposition in 
it has a definite and unmistakable meaning. Commentaries 
cannot cover them up or make them doubtful. 

" The case will always be a high and honorable proof of the 
eminence of the American Bar of that day, and of the talents 
and distinguished ability of the judges who were then in the 
places which we now occupy. 

" There were giants in those days, and 1 hope I may be 
allowed to say, without more than judicial impressiveness of 
manner or of words, that I rejoice that the structure raised by 
them for the defence of the Constitution, has not this day been 
weakened by their successors." 

Chief Justice Marshall concluded his opinion in 
Gibbons vs. Oofden with the followino- remarkable 
statement : 

" Powerful and ingenious minds, taking as postulates that 
the powers expressly granted to the government of the Union, 
are to be contracted by construction into the narrowest pos- 
sible compass, and that the original powers of the States are 
retained, if any possible construction will retain them, may, by 
a course of well-digested but refined and metaphysical reason- 
ing founded on these premises, explain away the constitution 
of our country, and leave it a magnificent structure, indeed, to 
look at, but totally unfit for use. They may so entangle and 
perplex the understanding, as to obscure principles which were 
before thought quite plain, and induce doubts, where, if the 

' 7 Howard, 437. 



62 Daniel Webster 

mind were to pursue its own course, none would be perceived. 
In such a case, it is peculiarly necessary to recur to safe and 
fundamental principles to sustain those principles, and, when 
sustained, to make them the tests of the arguments to be 
examined." ' 

The rule for deciding constitutional questions 
thus laid down is a concise repetition of the more 
elaborate statement at the beginning of the opinion. 
It is a fundamental rule. It is not too much to 
say that the application of the rules of construction 
which we have quoted from this opinion has given 
to our country that government which we now 
enjoy, and that we owe it to Mr. Webster that the 
conscience and judgment of the Supreme Court 
became satisfied that the rule referred to was the 
one unfailing test of the validity of any constitu- 
tional argument. This contention became a part 
of the national consciousness and sustained the 
nation in its great struggle from 1861 to 1865. 

' Gibbons z'S. Ogden, 9 Wheaton, p. 222. 



CHAPTER VI 

THE SLAVE TRADE " LA JEUNE EUGENIE " 

The next case of maenitude which deserves 
commemoration is that of La Jeune Eugenie} To 
us who Hve in the day when not only the slave 
trade but slavery itself has been abolished, it is 
strange there ever could have been a question 
whether the trade in slaves was in violation of the 
law of nations. But that question was raised and 
came for decision at about the same time before 
those two great men who simultaneously adorned 
the bench of England and America, Lord Stowell 
and Judge Story. Their respective decisions illus- 
trate what we have said as to the functions of the 
judge and the advocate, and the essential part the 
latter plays in the drama of justice. 

There had been a time when all nations were en- 
gaged in this traffic. Afterwards many of them 
passed laws forbidding it to their own citizens. 
The question arose, whether the court could take 
these isolated enactments and construe them as in 
the aggregate forming a general law enforcible by 
the cruisers, and in the courts of all nations which 
had adopted similar laws. 

' 2 Mason, 409 (1822). 
63 



64 Daniel Webster 

This was a question of vital importance to the 
world. The suppression of the slave trade had be- 
come of international importance. But it was a 
very profitable trade and the cupidity of those en- 
gaged in it led to constant contrivances for the 
evasion of the laws against it. The nations which 
had passed these laws kept naval vessels on the 
African coast for the capture of slavers. But if 
each vessel had the right to capture only slave 
ships of its own nationality, the slavers would fly 
the French flag in the presence of an American 
frigate, and when the latter was out of sight would 
hoist the stars and stripes as a French frigate ap- 
proached. As Commodore Stockton wrote Mr. 
Webster (February 5, 182 1), in reference to this 
very case : 

"If the Flag of nations who have prohibited the Trade 
shall yet cover it so as that it can't be questioned by another, 
for ourselves we had better keep our business at home. It is 
perfectly well known at what rate Americans can be turned 
into Frenchmen or Spaniards in the West Indies." ' 

La Jeune Eiigenie was a slaver, flying the French 
flag, which was captured by an American frigate 
and brought into Boston for adjudication. 

William Sullivan, one of the most brilliant law- 
yers of that day, argued that an American frigate 
had no rieht to seize a French vessel for the viola- 
tion of the law of France,^ and that the American 

' 15 Webster's Writings and Speeches, 2lg. 

2 It is interesting to note in this connection that the first law of France 
prohibiting French vessels from engaging in the slave trade was a decree 
of Napoleon, dated March, 1S15, soon after his return from Elba. Louis 



The Slave Trade 65 

law was not binding on French vessels. Mr. 
Webster argued " that most all of the civilized na- 
tions of the globe had declared their sense of the 
illegality of this trade, by enacting laws to suppress 
it, and by various other public acts, treaties and 
declarations. And that it micjht now therefore be 
considered as contrary to the conventional law of 
nations." ^ 

Judge Story in his opinion characterizes the ar- 
guments of the counsel as "very able, eloquent and 
learned,"^ and he decided in favor of the position 
maintained by Mr. Webster. As Commodore 
Stockton in the letter before quoted justly said : 

'* If you can maintain the great point you have taken, you 
will have done more for the cause of humanity than all the 
societies in the U. S. put together." ' 

Unfortunately for this cause, other courts, which 
did not have the aid of Webster's "able, eloquent 
and learned " argument, decided differently. In the 
case of the Antelope'^ the Supreme Court of the 
United States ordered restitution to a Spanish sub- 
ject of negroes captured from his slave ship by an 
American frigate. This was, it is true, by an 
equally divided Court, which because of such divi- 
sion affirmed the decree of the Court below. And 
at an earlier date (December 15, 181 7), Lord 

XVIII. declared this like all the other laws of the Hundred Days (of " the 
usurper" as Talleyrand called him) to be void. But in i8 17 Louis made a 
decree of somewhat similar purport. 2 Dodson, Adm. Rep., 5. 

' 15 Webster's Writings and Speeches (Ed. 1903), 280. 

*2 Mason Rep., 463. 

3 Webster's Writings and Speeches (Ed. 1903), vol. xv., p. 279. 

* 10 Wheaton, 66 (1825). 



66 Daniel Webster 

Stowell, the great English Admiralty Judge, held 
that the slave trade was not contrary to the law of 
nations.^ 

It is, however, to be noted that public opinion, 
both in the United States and Great Britain, had 
already become so strong against the slave trade, 
that British courts had sustained the seizure by a 
British frigate of a slaver flying the American flag.^ 
These courts seem to have considered that these 
two commercial nations had at least made a law for 
themselves. 

At a later date, in order to meet the need occa- 
sioned by these adverse decisions, and in conse- 
quence of that progressive public opinion which 
finally caused the abolition of slavery, civilized 
nations gradually came to an express agreement 
by virtue of which the slave trade was suppressed. 
The last cargo of negro slaves successfully landed 
was in i860. But this was an exception. Few in- 
deed were the slavers who escaped the vigilance 
of American and British cruisers during the two 
previous decades. 

' Le Louis, 2 Dodson Adm., 2io. 

'^'X\v& Amedie, i Acton, 240 (1810), High Court of Appeals. The case 
is also reported in note to i Dodson, Adm., 84. To the same effect is the 
Fortuna, i Dodson, 95 (1811), decided by Sir Wm. Scott, afterwards Lord 
Stowell. It is hard to reconcile this with his later decision in Le Louis. 
In Madrazo vs. Willes, 3 Barn, and Aid, 358 (1820), Mr. Justice Best, in 
the King's Bench (p. 359), said that if the law of Spain prohibited this trade, 
a Spanish slaver could lawfully be captured by a British cruiser. But as 
the law of Spain did not at the time of capture (iSiS) prohibit the trade, 
damages were awarded for such capture. 



CHAPTER VII 

STATE INSOLVENT LAWS OGDEN VS. SAUNDERS 

The next case of importance that Mr. Webster 
argued in the Supreme Court was that of Ogden 
vs. Saunders.^ 

The question involved in this case was as to the 
vaHdity of the insolvent laws of the several States. 
There was no federal bankruptcy act in force. 

The severe financial distress which began with 
the restrictions upon our commerce created by the 
embargo before the War of 1812, and which was 
intensified by the suspension of specie payments 
and by the disorganized condition of the currency 
at the close of that war, had led many of the States 
to pass insolvency laws. It was contended that 
these laws were contrary to that provision of the 
Constitution which prohibited a State from impair- 
ing the obligation of contracts. Mr. Webster's 
conviction was that the whole subject could best be 
dealt with by Congress, and that the condition of 
trade between the different States would be bene- 
fited by the passage of a national bankruptcy act, 
which should protect the rights of creditors from 

' 12 Wheat., 213. Mr. Webster's argument is in Webster's Works, vol. 
vi., p. 24. 

67 



68 Daniel Webster 

every State, and at the same time furnish to an 
unfortunate debtor the opportunity of beginning 
business again. 

In April, 1830, Mr. Webster wrote a letter to the 
Prison Discipline Society of Boston, advocating 
the mitigation of the laws for the imprisonment of 
debtors.^ He always favored the enactment of a 
national bankruptcy law. But when the validity of 
the State insolvent laws came before the courts, 
he argued earnestly that the Constitution had de- 
prived the States of the power of legislation on this 
subject. 

The case was argued at the February term in 
1824, was continued for advisement until the Janu- 
ary term of 1827, when a reargument was ordered, 
and at the conclusion of the argument of this and 
other cases which were pending, involving the ques- 
tion in different forms, a divided Court decided that 
an insolvent law of a State was valid so far as it 
affected contracts which were entered into after the 
enactment of the law. In other words, it held that 
a contract must be presumed to be made with ref- 
erence to the law of the State within whose limits 
the contract itself was agreed to, and became bind- 
ing upon the parties. But the previous decision in 
Sturges vs. Crowninshield,^ that the contract could 
not be affected, or its validity impaired by subse- 
quent legislation, was reaffirmed. By a divided 
Court it was also held that this legislation could not 
affect the rights of creditors who were, when the 
contract was made, citizens of a State other than 

^Letters of Webster, Van Tyne, pp. 155-157. '4 Wheat., 122. 



State Insolvent Laws 69 

that enacting the State law. These decisions de- 
prived the State insolvent laws of much of their 
value, and no doubt were powerful factors in induc- 
ing Congress to pass the national bankruptcy law 
of 1 84 1. That law was passed in a time of general 
financial distress, and it might almost be said of 
general insolvency. Its object was mainly to re- 
lieve unfortunate debtors. It failed properly to 
recognize the rights of creditors, and for that reason 
mainly its life was short. Subsequently a national 
bankrupt act more carefully considered has become 
a law, and seems likely to remain as a portion of 
our national legislation. And thus it has come to 
pass that the argument which Mr. Webster ad- 
dressed to the Court, and which, like all his argu- 
ments in cases of public importance, was read by 
the people and reached their judgment, has finally 
become a part of our jurisprudence, though it failed 
to convince the Court to which it was first ad- 
dressed. The old maxim is that " hard cases make 
shipwreck of the law." The insolvent condition of 
the debtors who were trying to begin business 
life again, and the hardship to them if no legal 
method existed by which an honest insolvent could 
make a new start, no doubt had much to do with 
the decision in Ogden vs. Saunders. 



CHAPTER VIII 

ACQUISITION OF NEW TERRITORY AMERICAN INSUR- 
ANCE COMPANY VS. CANTER 

The question of the authority of Congress over 
territory acquired by the United States in pur- 
suance of treaty with a foreign country, either as 
the result of war or of peaceful negotiations, has 
attracted recent attention in consequence of the 
war with Spain and the cession by that kingdom 
to the United States of the Philippine Islands and 
Porto Rico. Justices of the Supreme Court dif- 
fered greatly in regard to the disposition of par- 
ticular cases in which this question was argued. 
But the principles, upon the application of which 
depended the decision of what have been known 
as the Insular cases, are drawn from the decision 
of the United States Supreme Court in the case 
of the American Insurance Company vs. Canter.* 
Curiously enough, in this case also, the territory in 
question had been purchased from Spain. It was 
the peninsula of Florida, which was acquired by 
the United States by purchase under the treaty of 
1 8 19. In this treaty, however, unlike that of 1898, 
the Spanish Government stipulated that the in- 

' I Peters, 511 (1828). 
70 



Acquisition of New Territory 71 

habitants of the territories ceded should possess 
certain definite civil rights. The clause of the 
treaty referred to will be quoted hereafter. After 
the treaty, and in 1823, Congress passed an act 
providing for a legislature in the new territory, and 
giving to that legislature power to establish inferior 
courts. Pursuant to this provision the legislature 
did establish a court, consisting of a notary and 
five jurymen, who should have jurisdiction to de- 
termine the amount of salvage which should be 
payable to the salvors of property. Wrecks on 
the Florida keys have always been frequent, and 
the Court at Key West has always been busy with 
salvage questions. In the case under considera- 
tion, cotton was saved from a wreck, was carried 
into Key West, the Court there ordered it sold 
and the purchaser claimed a valid title under the 
judgment of this Court. It was contended on the 
other side that the Admiralty courts of the United 
States had exclusive jurisdiction of salvage cases, 
and that the court created by this act of the ter- 
ritorial legislature was without jurisdiction. Mr. 
Webster's argument is not contained in his pub- 
lished works, and is briefly given in the report in 
Peters (p. 538). The following extract from this 
report will give the reader some conception of his 
position : 

"What is Florida? It is no part of the United States. 
How can it be ? How is it represented ? Do the laws of the 
United States reach Florida ? Not unless by particular 
provisions. 

' ' The territory and all within it, are to be governed by 



72 Daniel Webster 

the acquiring power, except where there are reservations by 
treaty. 

" By the law of England, when possession is taken of terri- 
tories, the King, yure Coroner, has the power of legislation 
until Parliament shall interfere. Congress have the Jus 
Coronce in this case, and Florida was to be governed by 
Congress as she thought proper. 

" What has Congress done ? She might have done anything 
— she might have refused trial by jury and refused a legisla- 
ture. She has given a legislature to be exercised at her will; 
and a government of a mixed nature in which she has en- 
deavored to distinguish between State and United States juris- 
diction, anticipating the future erection of the territory into a 
State. 

" Does the law establishing the court at Key West come 
within the restrictions of the Constitution of the United States ? 
If the Constitution does not extend over this territory the law 
cannot be inconsistent with the national Constitution." 

The decision of the Court followed this argument 
very closely. It is on the following passage in the 
opinion delivered by Chief Justice Marshall that 
the decisions in the Insular cases are really based. ^ 

" The course which the argument has taken will require that 
in deciding this question, the court should take into view the 
relation in which Florida stands to the United States. 

" The constitution confers absolutely on the government of 
the Union the powers of making war and of making treaties; 
consequently, that government possesses the power of acquir- 
ing territory either by conquest or by treaty. 

" The usage of the world is, if a nation be not entirely sub- 
dued, to consider the holding of conquered territory as a mere 
military occupation, until its fate shall be determined at the 
treaty of peace. If it be ceded by the treaty the acquisition is 
confirmed, and the ceded territory becomes a part of the nation 
to which it is annexed, either on the terms submitted in the 

' I Peters, 541, 542. 



Acquisition of New Territory yz 

treaty of cession, or on such as its new master shall impose. 
On such transfer of territory it has never been held that the 
relations of the inhabitants with each other undergo any 
change. Their relations with their former sovereign are dis- 
solved, and new relations are created between them and the 
government which has acquired their territory. The same act 
which transfers their country transfers the allegiance of those 
who remain in it; and the law, which may be denominated 
political, is necessarily changed, although that which regulates 
the intercourse and general conduct of individuals remains in 
force until altered by the newly created power of the state. 

" On the 2nd of February, 1819, Spain ceded Florida to the 
United States. The sixth article of the treaty of cession con- 
tains the following provision — ' The inhabitants of the territories 
which his Catholic Majesty cedes to the United States by this 
treaty, shall be incorporated in the Union of the United States 
as soon as may be consistent with the principles of the federal 
constitution, and admitted to the enjoyment of the privileges, 
rights, and immunities of the citizens of the United States.' 

" This treaty is the law of the land, and admits the inhabi- 
tants of Florida to the enjoyment of the privileges rights and 
immunities of the citizens of the United States. It is unneces- 
sary to inquire whether this is not their condition, independent 
of stipulation. They do not, however, participate in political 
power; they do not share in the government till Florida shall 
become a State. In the meantime, Florida continues to be a 
territory of the United States, governed by virtue of that 
clause in the Constitution which empowers Congress ' to make 
all needful rules and regulations respecting the territory or 
other property belonging to the United States.' 

"Perhaps the power of governing a territory belonging to 
the United States, which has not, by becoming a State, acquired 
the means of self-government, may result necessarily from the 
facts that it is not within the jurisdiction of any particular State 
and is within the power and jurisdiction of the United States. 
The right to govern may be the inevitable consequence of the 
right to acquire territory. Whichever may be the source whence 
the power is derived, the possession of it is unquestioned. In 



74 Daniel Webster 

execution of it. Congress in 1822, passed 'an act for the estab- 
lishment of a territorial government in Florida,' and on the 
3rd of March, 1823, passed another act to amend the act of 
1822. Under this act the territorial jurisdiction enacted the 
law now under consideration." 

It is not within the scope of this work to con- 
sider in detail the decisions in the Insular cases. 
To do so would require a volume. But in 
general it may be said that they establish two 
propositions : 

1. Territory acquired by the United States by 
purchase is not "a foreign country," nor are its 
citizens aliens, 

2. It is subject only to the law-making power of 
Congress, and the restrictions of the Constitution 
of the United States do not limit this power.^ 

This question became important with reference to 
the subject of slavery. It was claimed by Calhoun, 
in opposition to the decision of the Supreme Court 
in the case just referred to, that the various pro- 
visions of the Constitution of the United States in 
regard to the rights of their citizens were in force 
throughout all the territory belonging to the United 
States. He further contended that the Constitu- 
tion recognized the rights of citizens of the several 
States to hold slaves, and that consequently until a 
territory was admitted into the Union and thereby 

' For convenience of the reader, reference is made to the leading de- 
cisions on this subject : De Lima vs. Bidwell, 182 U. S., i (1901) ; Downes 
vs. Bidwell, ibid., 244(1901); Huus vs. N. Y. and Porto Rico SS. Co., 
ibid., 392 (1901); Dooley x)j. United States, 1S3 U. S., 151 (1901) ; Four- 
teen Diamond Rings, ibid., iy6 (1901) ; Hawaii vs. Mankichi, 190 U. S., 
197 (1903) ; Gonzales vs. Williams, 192 U. S. i (1904). 



Acquisition of New Territory 75 

vested with the exclusive control over its \e<~ni\ 
affairs, citizens of those States within which slavery 
was authorized by law had the right to take their 
slaves into all parts of the United States territory, 
not admitted into the Union as a State. 

On the other hand, Mr. Webster maintained, as 
he did in the Canter case, that the only clause of 
the Constitution which by its own force was ap- 
plicable to the territories was that which provides 
that " the Congress shall have power to dispose of 
and make all needful rules and regulations respect- 
ing the territory or other property, belonging to 
the United States." Congress, therefore, had the 
right to exclude slavery from the territories, and to 
make all needful provision for their government 
until they should be admitted as States.^ 

^ The debate between Webster and Calhoun on that subject in the Senate 
in February, 1849, states the argument on both sides clearly and has an im- 
portant bearing on the relation of the United States to its Insular posses- 
sions. The editor of the last edition of Webster's Writittgs and Speeches 
has done public service in reproducing it (vol. xiv., pp. 323-335). 



X, 



CHAPTER IX 

THE UNITED STATES NOT A CONFEDERACY BUT A 

UNION REPLY TO MR. HAYNE CARVER 

VS. ASTOR's LESSEE 

There is one case of a purely technical nature, 
havinof no connection whatever with constitutional 
law, which will yet be forever associated with that 
one of Mr. Webster's speeches in Congress which 
at the time of its delivery probably produced the 
greatest impression of any of his speeches. This 
was his reply to Hayne. 

There was under consideration in the Senate a 
resolution introduced December 29, 1829, by Mr. 
Foot, a Senator from Connecticut, instructing the 
Committee of Public Lands to consider the ex- 
pediency of limiting for a certain period the sales 
of public lands. Mr. Benton, of Missouri, took 
up the resolution as an affront to the new States of 
the West, and Mr. Hayne, of South Carolina, on 
the 19th day of January, 1830, made it the occasion 
for an attack upon the East. 

The argument of the case of Carver against John 
Jacob Astor's Lessee and others^ involved, on the 
other hand, the construction of a marriage set- 

' Reported 4 Peters, i, 
76 



United States a Union ^^ 

dement and the old Entjlish law of shiftine uses 
and executory limitations. It also involved ques- 
tions purely technical, as to the delivery of a deed 
and the effect of recitals in it. The argument in 
the Supreme Court was commenced on the 20th of 
January, 1830. Mr. Webster was in court the day 
before waiting for the case to come on. After the 
adjournment he went into the Senate and heard 
the greater part of Mr. Hayne's speech. He rose 
to reply as soon as it was completed, but the Sen- 
ate adjourned without hearing him, and he spoke 
the following morning. Mr. Hayne's attack was 
entirely unexpected, and Webster's speech on his 
first reply was made with no opportunity of prep- 
aration. It was, however, an effective defence of 
New England, and showed the great benefits that 
a citizen of Massachusetts, Nathan Dane, the author 
of the celebrated ordinance of 1787, for establish- 
ing a government in the territory northwest of the 
Ohio, had conferred upon that portion of the West 
by this admirable constitutional instrument.^ 

The next day some of Mr. Webster's friends 
endeavored to obtain an adjournment of the Senate 
until after the completion of the argument of Car- 
ver against Astor's Lessee, but Mr. Hayne refused 
to consent. He said: " He would not deny that 
some things had fallen from him [Mr. Webster] 
which rankled here [touching his breast] from which 
he would desire at once to relieve himself. The 

' Those who are fond of coincidences may be interested to note that this 
first reply to Hayne was delivered on the same day as Chatham's speech for 
the Colonies in 1775 — January 20th. 



78 Daniel Webster 

gentleman had discharged his fire in the presence 
of the Senate. He hoped he would now afford him 
an opportunity of returning the shot." 

Thereupon Mr. Webster arose and said : 

" Let the discussion proceed. I am ready. I 
am ready now to receive the gentleman's fire." 

A member of Congress from the South, who was 
present, said it was impossible to describe *' the 
true grandeur that then marked his manner and 
countenance." ^ 

As soon as Mr. Benton had finished the speech 
upon the resolution, which he had begun the day 
before, Mr. Hayne arose and spoke for about an 
hour. By this time, presumably, his emotions had 
somewhat relieved themselves, and the Senate 
granted the courtesy which its great member had 
requested and adjourned until the following Mon- 
day. So Mr. Webster went back to the Supreme 
Court. He delivered his own argument there in 
the Carver case on the 2 2d, and on Monday, the 
25th, Mr. Hayne completed his speech. 

Beside the attack on New England, which has 
no longer anything but a remote historical interest, 
this speech contained a statement of the argument 
which had by this time come to be an article of 
faith in South Carolina, and was obtaining credence 
in other parts of the country, namely, that the 
Constitution was a compact between sovereign 
States, that there was no power supreme over 
these sovereigns to determine whether or not a 
particular act of Congress was an infraction of the 

' March, Reminiscences of Congress, 115. 



United States a Union 79 

compact ; that each State, therefore, must judge 
for itself, and that if, in the exercise of this sover- 
eign right and judgment, it came to the conclusion 
that a particular act was in violation of the com- 
pact, and therefore void, it could lawfully refuse 
obedience to the obnoxious statute, or, in other 
words, nullify it. This argument was advanced 
with especial reference to the tariff laws which had 
been passed in 1824 and 1828, and which were 
avowedly intended to encourage the development 
of American manufactures by the imposition of 
duties upon the importation of foreign goods. Mr. 
Calhoun had originally favored this so-called pro- 
tective system^ and Mr. Webster had opposed it.^ 
At the beginning of the tariff controversy it seems 
to have been supposed that manufactures might be 
introduced successfully in the South, At that time 
practically the entire commerce of the country was 
carried on by New England ships and sailors, and 
anything that tended to impose shackles upon this 
commerce was naturally obnoxious in the New Eng- 
land States. But when the policy of a high protective 
tariff was decided upon, and bills for that purpose 
were passed, in 1824 and 1828, large amounts of capi- 
tal in New Engfland were invested in manufactures. 

' See extracts from his speeches in House of Representatives in April, 
1816, Webster's Works, vol. iii., pp. 348-351. 

^ His reasons for this are fully stated in his speech in the House of Rep- 
resentatives, April, 1824 (Webster's Works, vol. iii., p. 94). See also his 
second speech on the tariff, delivered in the Senate May 9, 1828 {Ibid., 
pp. 228-231). I know of nothing on the subject of a protective tariff better 
worth study than those two speeches. The argument for free wool, for ex- 
ample, has never been better or more temperately stated than at p. 135 of 
the same volume. 



8o Daniel Webster 

The Hope Mills, in Rhode Island, for example, 
were originally built at that time, and were named 
for the ship Hope, which the original proprietors 
of those mills owned, and which they sold for the 
purpose of investing the proceeds in the manufac- 
tures which were then being encouraged by acts 
of Congress. 

On the other hand the business of the South 
remained agricultural The system of slavery did 
not lend itself to any other kind of business 
activity. The Southern planters discovered that 
the effect of the tariff laws was to increase the 
prices of the goods which they had to buy for 
their own families and for their negroes, and a great 
change of sentiment took place in the South, very 
naturally, on the subject of the tariff laws. 

An examination of the Constitution showed 
plainly enough that the power to impose tariff 
duties for a purpose other than that of revenue 
was not specifically granted. The strict construc- 
tionists therefore denied the validity of the tariff 
laws, and the State of South Carolina passed acts 
intended to prevent their enforcement at the port 
of Charleston. 

The question of secession had not yet come to 
the front. The burdens which the embargo im- 
posed upon the commerce of New England had in- 
deed led some of the New England people, before 
the War of 1812, to consider the expediency of a 
dissolution of the Union.^ But still the right of 

•It is worth noting, however, that when, in 1811, one of the New 
England representatives spoke of secession as a probable consequence of the 



United States a Union 8i 

secession, as it was subsequently discussed and 
advocated, can hardly be said to have been 
brought prominently to the public attention dur- 
ing the years before 1830. Nullification was the 
most prominent claim at that time. It seemed less 
drastic, and was maintained by its advocates to be 
consistent with the continuance of the union of the 
States. Hayne had put the argument for it with 
great plausibility, and a certain apprehension cre- 
ated by his speech spread rapidly through the 
country.^ 

It was on the 26th of January that Mr. Webster 
rose to reply. He spoke in what was then the 
Senate Chamber, and is now the court-room of the 
Supreme Court of the United States. The news 
that he was to speak, and on such a topic, had 
spread abroad, and the room was crowded almost 
to suffocation. Indeed to any one now standing in 
the room, it seems impossible that even with the 
former gallery, it could have ever contained so 
many people, as those who are said to have assem- 
bled to hear Webster's speech in reply to Hayne. 
That speech is so familiar, that it is unnecessary here 
to quote from it at length. It is really a statement, 
in eloquent and popular form, of propositions that 

passage of the bill for the admission of Louisiana as a State, the Speaker, 
Joseph B. Varnum, of Massachusetts, a soldier of the Revolution, held 
that "it was not in order to use words in debate which threaten the 
stability of the Union." — March, Remijiiscences of Congress, 202. 

^ A curious instance of this is to be found in a letter to Mr. Webster, 
dated March 10, 1S30, from George Hay, Judge of the United States Court 
for the Eastern District of Virginia, in which he considers the constitutional 
rights of the general government in case of secession, and what would 
constitute treason. The original letter is in the Congressional Library. 



82 Daniel Webster 

Mr. Webster had frequently argued in the Supreme 
Court of the United States. 

What Chancellor Kent said of it in the city of 
New York at a public dinner given on the loth of 
March, 1831, "to express the sense of our citizens 
of the importance of Mr. Webster's Congressional 
argument " is strictly true.^ 

" The consequences of that discussion have been extremely 
beneficial. It turned the attention of the public to the great 
doctrines of national rights and national union. Constitutional 
law ceased to remain wrapt up in the breasts and taught only 
by the responses of the living oracles of the law. Socrates 
was said to have drawn down philosophy from the skies and 
scattered it among the schools. It may with equal truth be 
said that constitutional law, by means of those senatorial 
discussions, and the master genius that guided them, was res- 
cued from the archives of our tribunals and the libraries of 
lawyers, and placed under the eye and submitted to the judg- 
ment of the American people. Their verdict is with us and 
from it there lies no appeal. 

In Mr. Webster's speech at this dinner, he gives 
an admirable summary of the questions which had 
been under consideration in Congress, and of the 
debate upon them. He shows very clearly, that 

"the judicial power under the Constitution of the United 
States was made co-extensive with the legislative power. It 
was extended to all cases arising under the Constitution and 
the laws of Congress. The Judiciary became thus possessed 
of the authority of deciding in the last resort, in all cases of 
alleged interference between State laws and the Constitution 
and laws of Congress. Gentlemen, this is the actual Constitu- 
tion, this is the law of the land." 

'Webster's Works, vol. i., p. 194. 



United States a Union 83 

He then proceeds to show, in language which it 
is almost impossible to abbreviate, that the argu- 
ment to the contrary is a perverse construction of 
plain language in the body of the Constitution itself, 
and then goes on : 

"At the very moment when our Government was quoted, 
praised, and commended all over the world, and when the 
friends of Republican Hberty everywhere were gazing at it with 
delight and were in perfect admiration at the harmony of its 
movements, one State steps forth, and by the power of nullifi- 
cation, breaks up the whole system and scatters the bright chain 
of the Union into as many sundered links as there are separate 
States. 

" Seeing the true grounds of the Constitution thus attacked I 
raised my voice in its favor, I must confess, with no prepara- 
tion or previous intention. I can hardly say that I embarked 
in the contest from a sense of duty. It was an instantaneous 
impulse of inclination, not acting against duty, I trust, but 
hardly waiting for its suggestions. I felt it to be a contest for 
the integrity of the Constitution, and I was ready to enter into 
it, not thinking or caring personally how I might come out." 

He then proceeds to express what must have 
been to him an almost inexpressible satisfaction at 
the success of the arg-ument : 

" The doctrines of nullification have received a severe and 
stern rebuke from public opinion. The general reprobation 
of the country has been cast upon them. Recent expressions 
of the most numerous branch of the national legislature are 
decisive and imposing. Everywhere the general tone of public 
feeling is for the Constitution." ' 

Perhaps there is no more terse expression of the 
great effect of this speech than is to be found in a 

' Webster's Works, vol. i., pp. 209-211. 



84 Daniel Webster 

letter from a leading citizen of Richmond, John H. 
Pleasants.^ It is dated Richmond, 4th March, 
1830: 

"Dear Sir: 

"Permit me to congratulate you on the speech, on the great 
sensation it has produced in this quarter, so flattering to your 
feelings, and the effect so honorable to the consistency of your 
public conduct and your ability to defend it. The knowledge 
that you have completely vindicated yourself, floored your an- 
tagonist, and gained a complete victory so far as argument 
goes, is nearly universal." 

In our day it would be thought that this letter 
was somewhat remote in date from the speech. 
But in 1830 there were neither telegraphs nor 
railroads. The circulation of the speech was 
necessarily slow. No doubt the readers had more 
leisure to examine it and meditate upon it, and 
probably in the end the results were as great as 
those which are produced by our immediate tele- 
graphic reports.^ 

The comparison between the language of the 
speech as Webster uttered it (or at least as it was 
taken down by the shorthand reporter), and that in 
which he printed the speech for circulation, is so 
interesting that I cannot refrain from giving them 
both. The first is as follows ^ : 

"While the nation lasts we have a great prospect of pros- 
perity, and when this Union breaks up there is nothing in 

' Curtis's Life of Webster, vol. i., p. 370. 

' The great impression which this reply produced upon Mr. Lincoln is 
described in Herndon's Lincoln (Ed. 1889), pp. 400, 478 ; Thorpe, Const. 
Hist. U. S., vol. ii., p. 396. 

' Webster Centennial, Dartmouth, p. 135. 



United States a Union 85 

prospect for us to look at, but what I regard with horror and 
despair. God forbid; yes sir, God forbid that I should live 
to see this cord broken; to behold the state of things which 
carries us back to disunion, calamity and civil war. When 
my eyes shall be turned for the last time on the meridian sun, 
I hope I may see him shining bright upon my united, free and 
happy country. I hope I shall not live to see his beams fall- 
ing upon the dispersed fragments of the structure of this once 
glorious Union. I hope I may not see the flag of my country 
with its stars separated or obliterated, torn by commotion, 
smoking with the blood of civil war. I hope I may not see the 
standard raised of separate state rights, star against star, and 
stripe against stripe; but that the flag of the Union may keep 
its stars and its stripes corded and bound together in indis- 
soluble ties. I hope I shall not see written as its motto 
^ First Liberty and then Union.' I hope I shall see no such 
delusive and deluded motto on the flag of that country. I 
hope to see spread all over it, blazoned in letters of light, and 
proudly floating over land and sea, that other sentiment, 
dear to my heart, 'Union and Liberty, Now and Forever, One 
and Inseparable.' " 

As the speech was pubHshed, the peroration was 
in the following form ^ : 

"While the Union lasts, we have high, exciting, gratifying 
prospects spread out before us, for us and our children. Be- 
yond that I seek not to penetrate the veil. God grant that in 
my day at least that curtain may not rise. God grant that on 
my vision never may be opened what lies behind. When my 
eyes shall be turned to behold for the last time the sun in 
heaven, may I not see him shining on the broken and dis- 
honored fragments of a once glorious Union; on States dis- 
severed, discordant, belligerent; on a land rent with civil 
feuds or drenched, it may be, in fraternal blood. Let their 
last feeble and lingering glance rather behold the gorgeous en- 
sign of the republic, now known and honored throughout the 

'Webster's Works ^ vol. iii., p. 342. 



86 Daniel Webster 

earth, still full high advanced, its arms and trophies streaming 
in their original lustre, not a stripe erased or polluted, nor a 
single star obscured, bearing for its motto, no such miserable 
interrogatory as 'What is all this worth ? ' nor those other words 
of delusion and folly, ' Liberty first and Union afterwards ' ; 
but everywhere, spread all over in characters of living light, 
blazing on all its ample folds, as they float over the sea and 
over the land, and in every wind under the whole heavens, 
that other sentiment, dear to every true American heart — 
' Liberty and Union, Now and Forever, One and Inseparable.' " 

An illustration of the careful way in which Mr. 
Webster prepared the oration for publication is to 
be found in a letter of Edward Everett, dated Janu- 
ary 26, 1830 ^ : 

"When you come to the ' standard of the Union ' in the 
peroration, look at what was floating in your mind — Milton's 
description of the infernal banner in the lower regions, float- 
ing across the immensity of space, which is in turn borrowed 
from Tasso's description of the banner of the Crusades, when 
first unfolded in Palestine." 

Another reference to the revision for the press 
of the shorthand notes is to be found in a letter 
from Mr. Webster to his old friend, Jeremiah 
Mason, written in Washington, February 27, 
1830: 

"The press has sent abroad all I said in the late debate, 
and you will have seen it. I have paid what attention I could 
to the reporter's notes; but in the midst of other pressing en- 
gagements, I have not made either speech what it ought to be; 
but let them go. The whole matter was quite unexpected. I 
was busy with the Court, and paying no attention to the de- 
bate, which was going on sluggishly in the Senate, without 

• Letters of Webster, Van Tyne, p. 146. 



United States a Union 87 

exciting any interest. Happening to have nothing to do for 
the moment in Court I went into the Senate and Mr. Hayne, 
so it turned out, just then rose. When he sat down, my 
friends said he must be answered, and I thought so too, and 
being thus got in, thought I must go through. It is singular 
enough, though perhaps not unaccountable, that the feeling of 
this little public is all on our side. I may say to you that I 
never before spoke in the hearing of an audience, so excited, 
so eager and so sympathetic. " ' 

In a brief reply to Mr. Hayne's rejoinder, Mr. 
Webster summed up the argument in a speech com- 
prising only five pages of his printed works, from 
which we must quote briefly, for it summarizes the 
argument on both sides in masterly fashion. Of 
Mr. Hayne's argument he says : 

" His propositions are: 

" I. That the Constitution is a compact between the States: 

" 2. That a compact between two, with authority reserved 
to one to interpret its terms, would be a surrender to that one 
of all power whatever. 

"3. Therefore (such is his inference,) the general govern- 
ment does not possess the authority to construe its own 
powers." 

To this Webster replies : 



" The Constitution, it is said, is a compact between States. 
The States then, and the States only, are parties to the com- 
pact. How comes the general government itself a party. 
Upon the honorable gentleman's hypothesis, the general gov- 
ernment, is the result of the compact, the creature of the 
compact, not one of the parties to it. Yet the argument as the 
gentleman has now stated it, makes the government itself one 
of its own creators. It makes it a party to that compact to 
which it owes its own existence. 

' Webster's Private Correspondence, vol. i., p. 488. 



88 Daniel Webster 

" While the gentleman is contending against construction, 
he himself is setting up the most loose and dangerous con- 
struction. The Constitution declares that the laws of Congress 
passed in pursuafice of the Constitution, shall be the supreme law 
of the land. No construction is necessary here. " It de- 
clares also, with equal plainness and precision, that the judicial 
power of the United States shall extend to eziery case arising 
under the laws of Congress. This needs no construction. 
Here is a law, then, which is declared to be supreme; and 
here is a power established, which is to interpret that law. 
Now Sir, how has the gentleman met this ? Suppose the Con- 
stitution to be a compact, yet here are its terms, and how does 
the gentleman get rid of them ? He cannot argue the seal off 
the bond, nor the words out of the instrument. Here they are. 
What answer does he give to them? None in the world, Sir, 
except that the effect of this would be to place the states in a 
condition of inferiority; and that it results from the very 
nature of things, there being no superior, that the parties must 
be their own judges. 

" So then, Sir, even supposing the Constitution to be a com- 
pact between the states, the gentleman's doctrine nevertheless, 
is not maintainable, because — first, the general government is 
not a party to that compact, but a. government established by it 
and vested by it with the powers of trying and deciding doubt- 
ful questions; and secondly, because, if the Constitution be 
regarded as a compact, not one state only, but all the states, 
are parties to that compact, and one can have no right to fix 
upon it her own peculiar construction. 

" But Sir, the gentleman has failed to maintain his leading 
proposition. He has not shown — it cannot be shown that the 
Constitution is a compact between state governments. The 
Constitution itself, in its very front, refutes that idea; it de- 
clares that it is ordained and established by the people of the 
United States. . . . The gentleman says, it must mean no 
more than the people of the several states. Doubtless, the 
people of the several states, taken collectively, constitute the 
people of the United States; but it is in this, their collective 
capacity, it is as all the people of the United States, that they 



United States a Union 89 

establish the Constitution. So they declare ; and words cannot 
be plainer than the words used. 

" When the gentleman says the Constitution is a compact 
between the States, he uses language exactly applicable to the 
old Confederation. He speaks as if he were in Congress before 
1 789. He describes fully that old state of things then existing. 
The Confederation was, in strictness, a compact; the States, as 
states, were parties to it. We had no other general govern- 
ment. But that was found insufficient, and inadequate to the 
public exigencies. The people were not satisfied with it, and 
undertook to establish a better. They undertook to form a 
general government, which should stand on a new basis; not 
a confederacy, not a league, not a compact between States, but 
a Constitution; a popular government founded in popular 
election, directly responsible to the people themselves, and 
divided into branches with prescribed limits of power, and 
prescribed duties. They ordained such a government, they 
gave it the name of a Constitution, and therein they established 
a distribution of powers between this, their general govern- 
ment, and their several State governments. When they shall 
become dissatisfied with this distribution, they can alter it. 
Their own power over their own instrument remains. But 
until they shall alter it, it must stand as their will, and is 
equally binding on the general government and on the 
states." ' 

In an unpublished letter to William Pope, of 
Virginia, written April 13, 1830, occurs the follow- 
ing passage which may be compared with Webster's 
statement in the Senate twenty years later {post, 
p. 172). During all these twenty years he never 
wavered in his devotion to the spirit of nation- 
ality, felt and expressed alike at forty-eight and at 
sixty-eight. 

The letter itself illustrates very well the cor- 

' Webster's Works, vol. iii., pp. 343, 346. 



90 Daniel Webster 

respondence occasioned by the great reply to 
Hayne : 

"Washington, April 13, 1830. 
" My dear Sir: 

" I thank you for your kind and friendly letter of the 12th 
inst. The incidents you narrate, relative to the campaign of 
1 781, are interesting, and excite strong patriotic feeling. In- 
deed, my dear Sir, 'of all unnatural things, spleen and jeal- 
ousy, between the Southern States and New England, are the 
most unnatural. They have been excited, ex industria, for 
paltry party purposes. 

" I hope you will obtain Mr. Wirt's consent to publish parts 
of his letter. He is a great favorite with us in New England. 
In truth there is not a distinguished Virginian in being, Mr. 
Madison, Mr. Jus. Marshall, Mr. Wirt, or any other promi- 
nent man, who has kept clear of the topics of modern strife, 
who is not as highly regarded in New England, as in Virginia 
herself. And why should it not be so ? Why should we 
localize our feelings ? Why should we cut up and divide our 
patriotism as we do the public lands, into sections, half 
sections, quarter sections, and half quarter sections ? 

" For my part Americanus sum et nihil Americanum fnihi 
alietium puto. 

• ••••••• 

' ' I am with much regard, 

"Yours, 

"Danl, Webster, 
" Wm. Pope, Esq. 

" I believe some of our friends intend to send you a dozen 
copies of my speech, for any of yr. neighbors who may desire 
to read it." 

The practice of circulating speeches, printed at a 
government printing-office, had not at that time 
begun. Congressmen or their friends printed any 
speeches they chose to pay for. Of this second 



United States a Union 91 

speech the National Intelligencer alone printed 
forty thousand copies, and twenty editions were 
printed by other papers. 

A curious illustration of the effect upon the 
minds of the young men of America produced by 
these speeches on Foot's resolution, is to be found 
in a letter from Webster's son, Fletcher, to his 
father, dated March 23, 1830: 

" I never knew what the Constitution really was till your last 
short speech. I thought it was a compact between states. I 
like that last reply better than all the rest, for it comes out so 
a propos and conclusive, that Mr. Hayne has nothing more to 
say. It is the coup de grace. It winds him up, as we boys 
used to say." ' 

At this same January term of the Supreme 
Court, Mr. Webster argued twelve other cases, in- 
volving a great variety of questions, besides con- 
stant attention to his duties as a Senator. 

Nothing illustrates more vividly the extraordinary 
variety of Mr. Webster's acquirements and powers, 
than a comparison between his legal arguments and 
his speeches in Congress. The former related to 
every branch of the law, even to that involving the 
validity and construction of patents. The latter 
related not only to the Constitution of his country, 
but to her foreign relations, the tariff, finance, pub- 
lic improvements. He touched no subject that he 
did not illumine. He was in truth a myriad-minded 
man, and of all the lawyers and statesmen of his 
time left the most permanent impression. Every 

' Letters of Webster, Van Tyne, p. 151. 



92 Daniel Webster 

student of the political questions of to-day should 
consult his works. 

In the latest of his cases at this term, he appeared 
for his old client " The Society for the Propagation 
of the Gospel in Foreign Parts." ^ In this case he 
maintained successfully that a foreign corporation, 
all the members of which are beyond seas, is within 
the exception of the statute of limitations. Refer- 
ence is made to this here, as it was to the case 
of Carver against Astor's Lessee, solely for the 
purpose of drawing attention to the fact that Web- 
ster was not only a constitutional lawyer and states- 
man, but a thoroughly trained and equipped master 
of all branches of his great profession. 

' Society, etc. vs. The Town of Pawlet, 4 Peters, 480. 



CHAPTER X 

THE UNITED STATES A UNION, NOT A CONFED- 
ERACY SUBJECT CONTINUED REPLY 

TO CALHOUN 

Chancellor Kent, on the tenth of March, 1831, 
expressed the sentiment of probably a majority of 
the American people when he addressed Mr. Web- 
ster in the language already quoted {a^ite, p. 82 ).^ 
His concluding sentence (referring to the American 
people) : " Their verdict is with us, and from it, 
there lies no appeal," was unfortunately too opti- 
mistic. If we may follow the Chancellor's exam- 
ple, and adopt a legal figure, the nullifiers moved 
for a new trial. The States' Rights party in South 
Carolina held a celebration on the Fourth of July, 
1 83 1, in which their claims were stoutly maintained. 
The agitation continued in other States besides 
South Carolina. As Webster wrote Clay from 
Boston, on the fifth of October (183 1), in refer- 
ence to the approaching session of Congress : 

" The Constitution itself in its elementary and fundamental 
provisions will be assailed with talent, vigor and union. 
Everything is to be debated as if nothing had ever been settled. 

'Webster's Works, vol. i., p. 194. 
93 



94 Daniel Webster 

. . . Everything valuable in the Government is to be fought 
for, and we need your arm in the fight." ' 

Unfortunately, Clay's arm at this time was em- 
ployed in the task of compromise. Although he 
was the father of the so-called "American protective 
system," yet he was willing to give it up, in order 
to pacify the nullifiers. In 1833, he did frame a 
tariff bill in which provision was made for a gradual 
reduction of the tariff to a revenue basis only. 

Meanwhile, in November, 1832, the State of 
South Carolina adopted what was commonly called 
the Nullification Ordinance. This declared that 
the tariff acts of 1828 and 1832 were null and void, 
and named the first day of February, 1833, as the 
day when they should cease to be " binding upon 
this State, its officers or citizens." On the tenth 
day of December, 1832, Andrew Jackson, who was 
then President of the United States, issued a pro- 
clamation, in which he declared that this Nullifica- 
tion Ordinance would be entirely disregarded by 
the federal authorities, and that he would enforce 
the laws for the collection of duties upon imports 
in South Carolina, in spite of it. Of the effect of 
this proclamation, Mr. Webster writes to William 
Sullivan, January 3, i833~: 

" At the present moment it would seem that public opinion, 
and the stern rebuke by the executive government, had, in a 
great measure, suppressed the immediate danger of nullifica- 
tion. As far as we see the results of the legislation of South 
Carolina, her laws limp far behind her ordinance. For aught 
that appears, nothing will interrupt the ordinary collection of 

' Clay's Works, vol. iv., p. 318. "^Private Corr., vol. i., p. 328. 



United States a Union 95 

duties after February ist, unless some individual chooses to 
try the nullifying remedy." 

Shortly before this, Colonel Hayne had resigned 
his seat in the Senate and been elected Governor 
of South Carolina. Calhoun, who had been elected 
Vice-President on the same ticket with Jackson in 
1828, but had broken off friendly relations with 
his chief, resigned the Vice-Presidency, was elected 
Senator from South Carolina and took his seat 
January 4, 1833. It was felt by his friends that he 
was the ablest advocate of the States' Riofhts doc- 
trine, and that he could measure swords with Web- 
ster without fear of defeat. He opened fire on the 
Administration on the sixteenth of January. On 
the twenty-first of that month, Mr. Wilkins, of 
Pennsylvania, the Chairman of the Judiciary Com- 
mittee, introduced in the Senate a bill to enlarge 
the power of the Executive in enforcing the laws 
for the collection of duties on imports. This bill 
was commonly known as the Force Bill. Calhoun 
was the leader of the opposition. He introduced 
in the Senate resolutions expressing his theory of 
the nature of our government, and delivered an 
acute and skilfully reasoned speech in their sup- 
port. In reply to him, and on the sixteenth of 
February, 1833, Webster made one of his most 
carefully considered and effective arguments, of 
which the following brief extract will give the main 
points as Webster himself stated them : 

"The gentleman's resolutions, then, affirm in effect that 
these twenty-four United States are held together, only by a 



9^ Daniel Webster 

subsisting treaty, resting for the fulfilment and continuance on 
no inherent power of its own, but on the plighted faith of each 
State." . . . 

"And now, Sir, against all these theories and opinions, I 
maintain: 

" I. That the Constitution of the United States is not a 
league, confederacy or compact between the people of the 
several States in their sovereign capacities; but a government 
proper, founded on the adoption of the people, and creating 
direct relations between itself and individuals. 

" 2. That no State authority has power to dissolve these 
relations; that nothing can dissolve them but revolution; and 
that consequently there can be no such thing as secession 
without revolution. 

" 3. That there is a supreme law, consisting of the Constitu- 
tion of the United States, acts of Congress passed in pursuance 
of it, and treaties; and that in cases not capable of assuming 
the character of a suit in law or equity. Congress must judge 
of and finally interpret this supreme law so often as it has 
occasion to pass acts of legislation; and in cases capable of 
assuming, and actually assuming, the character of a suit, the 
Supreme Court of the United States is the final interpreter. 

" 4. That an attempt by a State to abrogate, annul, or nullify 
an act of Congress, or to arrest its operation within her limits, 
on the ground that, in her opinion, such law is unconstitutional, 
is a direct usurpation on the just powers of the general govern- 
ment, and on the equal rights of other States, a plain violation 
of the Constitution, and a proceeding essentially revolutionary 
in its character and tendency." ' 

He puts the questions thus : 

" The people have ordained a Constitution: can they reject 
it without revolution ? They have established a form of gov- 
ernment ; can they overthrow it without revolution ? These 
are the true questions." 

1 Webster's Works, vol. iii., p. 457. 

* Webster's Works, vol. iii., pp. 464, 465. 



United States a Union 97 

There still remains in Mr. Webster's own hand- 
writing his brief for this speech.^ It is perhaps the 
most elaborate brief, now extant, of any of his ar- 
guments, and deserves to be printed in full. 

"Two first Resolutions affirm these propositions. 

" I. That the system, under which we live, and under which 
Congress is assembled, is a compact, to which the people of 
the several States, as separate and sovereign communities, are 
the parties. 

"2. That these Sovereign Parties have a right to judge, 
each for itself, of any alleged violation of the Constitution by 
Congress, and to choose their own mode of redress. 

'' '^S^ 'Constitutional Compact.' 'Accede' . . . a compact 
between Sovereign Communities, however qualified as being a 
constitutional compact, is, after all, but a /eague. As between 
communities, entirely sovereign, there is no difference between, 
a compact, a confederacy, and league. They all rest on plighted 
sovereign faith. A league is no more than a continuing, sub- 
sisting treaty. 

". . . The Resolutions, then, affirm, ist that these U. 
States are connected together solely, by a continuing, or sub- 
sisting treaty ... by a icague. 

". . . The next proposition is, that as sovereigns are 
subject to no superior power, they must of course judge, and 
decide, each for itself, of any alleged violation of the obhga- 
tions subsisting between them; and if such violation be sup- 
posed to have occurred, each may adopt any mode or measure 
of redress, which it thinks proper. 

"If a league, between sovereigns, have no limitation, in 
point of time, and contain nothing making it perpetual, it sub- 
sists only during the good pleasure of the parties, altho no 
violation of it be complained of. 

" • • • If, in the opinion of either party it be broken, 
then the injured party has a right to say, he will not per- 
form any or see her own obHgations under it; or to consider 

* Library N. H. Historical Soc, Websteriana, vol. xvi., pp 40-43. 



98 Daniel Webster 

altogether at an end, tho' it were professsed to be perpetual; 
so Congress considered the French Treaty, in 1798. 

" . . . And if this violation of the league be accom- 
panied with serious and aggravated injuries, the suffering party 
has a right to make reprisals, and to make war; because he 
is himself to judge of his own mode and measure of redress. 

" The plain and necessary import of the Resolutions, then, 
is, 

" That the States are connected only by a league; that any 
State may determine when the league is violated ; and that she 
may redress the violation herself, in any way, fit for a sovereign 
power; and an equally plain consequence from the Resolutions 
is, that the league may be abandoned w't. cause, at the pleasure 
of either party. So. Carolina may make reprisals on Georgia; 
and seize g'l. p'py of all the States. 

" . . . If this be our political condition, it is time the 
people knew it. Secession is one mode of redress. 

" . . . One State, holding the embargo law unconstitu- 
tional, may so declare her opinion, and withdraw: she secedes^ 
and makes reprisal, another, having the same opinion of the 
revenue laws, withdraws, for the same reason. . . . She 
secedes^ and makes reprisals for ' Robbery.'' 

" . . . But, the Constitution, in the opinion of a third 
State, may be violated by omitting to pass laws. She may 
say, she went into the Constitution, and gave up her own 
power over imposts, because Genl. Govt, undertook to exercise, 
for protection. This was the clear opinion of Congress. Con- 
stitutional law is broken by the relinquishment of this power 
and so, she secedes. 

" . . . No law, therefore, can be binding on all the 
States, the constitutionality of which is not admitted by all the 
States. 

" Under the old Confederation, all the States were bound, 
by the decision of p, on any question under it. Under this 
'more perfect union,' the consent of all, on constitutional 
questions, is necessary to bind all. 

" . . . Va. may secede, and hold the fortress in the 
Chesapeake. 



United States a Union 99 

"... Mass. may secede, and hold the forts in her 
harbours and the pubhc arsenals and armories 

" . . . The Western States may secede, and hold the 
public lands. 

' . . . Louisiana may secede, and hold the mouth of the 
Mississippi. 

"If one State may secede, ten may — 20 may 
Twenty-three may. What constitutes, then, the U. S. ? 
Where will be the army ? where the Navy? ... If So. 
Carolina goes off, does she mean to demand partition, and 
take a schooner and a sloop with her ? Who will pay the debts ? 
Who fulfil the public Treaties ? We have treaties, by which 
the ports of Carolina, are open, on specific terms, to the 
nations of Europe. Who fulfils them, after secession ? 
Who will guaranty to S. Carolitta a Republican Govt. ? 

" Everybody must see, that these are questions which arise 
only after a Revolution. Nothing but a Revolution can give 
rise to them. Secession, therefore, is Revolution: ad- 
mitted., I think. 

" Nullification is Revolutionary. What is Revolu- 
tion ? That which overturns, or controls, the existing public 
authority; that which arrests the exercise of the supreme 
power; that which introduces a new permanent power, into 
the rule of the State. 

" Now, this is the object of nullification. 

" It supersedes the Supreme Legislative Authority. It ar- 
rests the arm of Executive officers. ... It interrupts the 
operation of the judicial powers?. ... Is not this Revo- 
lutionary ? Within So. C. it accomplishes, portends, a 
Revolution. 

"Alter sec, U. S. Legislation, in its principal pt. has no 
favor there . , . nor the Prest. nor the Courts. 

" fi^^So soon as ordinance executed, as complete a Rev. as 
American Rev. 

" And its direct tendency is to break up the whole union. 

" Constitution of U. S. was accepted as a luhole. On the 
whole Instrument, as a whole, a majority of the people and of 
the States have given an interpretation. 



LafC. 



loo Daniel Webster 

" . . . S. C. opposes this. She opposes what the ma- 
jority says is the Constitution, and the laws. 

" . . . She resists, as to herself, an Act of Congress, 
bearing on all the States, as well as herself. 

" S^^ ... If unconstitutional, as to her, the same as to 
the rest. She construes the law for all, and breaks it for 
all. 

" If successfully resisted by So. Carolina, it must be sur- 
rendered everywhere. This plain. And it is the whole 
Revenue of U. S. 

"She aims a blow, therefore, at the vitality of the whole 
system. 

" The direct tendency of her act, is to overthrow the Govt. 

" If her ordinance and law are not suppressed, they neces- 
sarily produce a Revolution. 

" B^" What shows this more clearly, still, is, that So. Caro- 
lina nullifies, that very precise power, for which the Const, 
was formed, viz. : the levying of imposts., independent of the will 
of the States. 

" Nullification is Revolutionary, because Nullification by 
force (and this, as will appear is by force) is treason. In what 
does treason consist ? 

" These are plain results of the principles of the Rev. altho 
So. Carolina complains that she is misunderstood; and Va. 
resolves that she is misunderstood. 

" . . . A right to judge, by a State, for itself, necessarily 
leads to force. 

" . . . Because every State must have the same right, 
and they will differ in their contentions. 

" . , . Each State, on entering into the Union, gave up 
a part of its own exclusive power over itself. 

" . . . The consideration for this, was, that it gained a 
partial power in legislating for other States. 

" . . . Mass. gave up the right to levy imposts ; because 
she claimed the right of uniting with others, in levying im- 
posts, for the whole union. 

" . . . If So. Carolina denies this., she breaks the condition 
only on which Mass. entered into the union. 



United States a Union loi 

If one State may declare a law unconstitutional 
another may declare it constitutional ... if each may 
claim its own mode of redress . . . each may make war. 

" '^o presumption, in favor of unconstitutionality. 

" . . . This doctrine, instead of being favorable to mi- 
norities is destructive of their rights . , . because it ulti- 
mately refers to some. Polyglot. 

" Two sides of the Union: 

" Mr. Calhoun's proposition: States may judge of extent of 
individual obligation. 

" If so, then of Individual Right. State Right — Guaranty 
and State obligation. Laws imposing contracts. Bills of 
credit . 

' ' // annihilates the whole list of prohibitives. 

This is a controversy between States . . . 2j vs. one. 
One State tnay sue another a?id might under the confederation. 

" Is she here, to be own judge. 

" I maintain 

" I. That the Constitution of U. S. is not a league, con- 
federacy, or compact between the States, in their sovereign 
capacities; but a Government, proper; founded on the adop- 
tion of the People, and creating direct relations between itself 
and individuals. 

" 2. That no State authority has power, to dissolve these 
Relations; that nothing can dissolve them, but Revolution; 
and that consequently there can be no such thing as secession, 
without Revolution. 

" 3. That there is a Supreme Law, consisting of the Con- 
stitution of the U. S. Acts of Congress passed in pursuance of 
it, and Treaties; and that in cases, not capable of assuming 
the character of a suit, in law or equity, Congress must judge 
of, and interpret this paramount law; and in cases capable of 
assuming, and actually assuming, that character, the Supreme 
Court of the U. S. is the final interpreter. 

" 4. That an attempt by a State to abrogate, annul, or nullify 
an Act of Congress, or to arrest its operation within her limits, 
on the ground that in her own opinion such law is unconstitu- 
tional, is a direct usurpation upon the just powers of the Genl. 



I02 Daniel Webster 

Government, a plain violation of the Constitution, and a 

proceeding essentially Revolutionary, in its character and 

tendency . 

I. 

"No compact between States, but a Govt, creating direct 
relations with individuals . . . 

" Ji^°. . . Must be argued, mainly on face of Constitu- 
tion itself. 

" . . . We must not turn our backs to the light. 

" All agree, that it speaks with authority and is, some how 
adopted. 

" Great question is, what does it say of itself? what does it 
purport 7 

"It is to be remembered, that it speaks only, after its adoption. 

' ' Till ratified in 9 States, it was but a proposal, a draft. 

"Convention framed the Const. . . . laid it before 
Old Congress . . . Congress transmitted it to the Legis- 
latures of the States, to be laid before Conventions of the 
People — St. Legis. called these Conventions . . . 

" As yet, it was but 2^ proposal. It spake no language . . . 
when 9 States ratified, it then spake, authoritatively. 

' ' What it says of itself is as conclusive, as what it says on any 
other subject. 

" What does it say of itself? 

"I. It is a Constitution; not a compact, not a confederacy, 
not a league, but a Constitution. 

[On the margin is written, " No State shall enter into a 
compact."] 

" What is a Constitution 7 Do we need information on this 
point ? Public law. Vattell. Locke. 

" What is the Constitution of one of our own States ? 

"Constitution of U. S. speaks of itself, in same sense. 6 
Art. 2 section. 

[On margin " Vid So. Carolina Ratification, p. 409 and 

N. C. p. 452."] 

" And it speaks for itself in contradistinction to confedera- 
tion. Art. 6. 

Between States ratifying Constitution is a law. It is 



United States a Union 103 

assumed to be the Supreme Lmv. What is a law ? . . . 
not a compact . . . but a rule, prescribed by a Supreme 
power, commanding what is right, etc. 

" Mr. Madison 

"MS. The Constitution, then, is the prescribed Supreme 
rule. As if People had said, ' We, the People of U. S. pre- 
scribe the following Supreme law. ' 

" Is a law, a contract, or compact? 

"Again; the language, it is ordained . . . established. 
This not the language of compact. 

" J8^" The great difference is; a Constitution, a law, acts by 
its own power of execution. A compact is between superior 
powers. 

" II. The Constitution speaks of the political system which 
it establishes, as ' the Govt, of the U. S.' 

''What is a Govt. Is a league, a compact between Sov. 
States a Govt. 

" Is a treaty, however close, a Gov. ? 

" A Govt, of a State is the Supreme power of that State. It 
is that precisely which constitutes sovereignty . 

Every nation, or State, that governs itself, is a sovereign 
State.' 

" Vattell p. 60. It is the frame of political power which, 
prescribes the laws etc. 

" B^ Difference between a Govt. . . . and a treaty or 
compact . . . Consolidation. 

"III. What are its sanctions? Does it rest in plighted 
faith., Does it operate propria vigore. Mr. Bibb says the 
former. But not so. vid Arts of Confederation. 

"Constitution operates, by its own means, and own power. 
It has its own Legislature . . . Executive . . . and 
'judicature. It enforces its own decisions, by its own proper 
power. This is not compact, but Govt. Vid prohibitions on 
Congress. 

No answer, to say the Constitution is founded, 
on restraints or powers of Govt, in the consent of the peo- 
ple. So it is; but when so founded, it becomes law, not com- 
pact. It is contract, executed. Statutes are founded on 



104 Daniel Webster 

the agreement of ye Senate and House; but when passed, they 
are no longer agreements, but law. 

" It defines treason. It tries for treason, and punishes for 
treason, by its own authority. 

" How can there be treason agt. a compact, a league. It in- 
corporates the States, as a sovereign power; by name ' U. S.' 
' treason agt. U. S.' * U. S.' ' Several States.' 

"IV. It creates a direct relation, between itself, and indi- 
viduals. This has been denied, but is true. 

" Contracts. 

" It has a corporate character, i. It punishes him for 
treason, and all other crimes in the code. 

"2. It taxes him, directly and indirectly, and in all forms. 

"3. It demands of him military service; and subjects him 
to the rules of war. 

"Are not these direct relations? Can closer relations, 
exist, between any man, and his Govt. 

" It protects him, also. 

" I. It makes war, for his protection; and no other Govt 
can do it. 

"2. It makes peace, for his protection; and no other Govt, 
can do it. 

"3. It maintains armies and navies, for his protection; and 
no other Govt, can maintain them. 

"4. He sails under its flag, and can sail under no other 
In every thing, that connects him with foreign States 
it is his only Govt. 

"He can be known abroad, only as its citizen . 
Suppose a S. Carolinian to go abroad. He rejects the char- 
acter of Am. citz. 

"V, If this be nothing but a compact between sovereign 
States, or parties, where are the rights and duties of these par- 
ties pointed out. What are the rights of parties. What have 
the States protnised to do ? Nothing. What promised not to 
do? Nothing. They do not promise to appoint Electors, and 
Senators; they are directed to do it. . . . 

" They do not stipulate, they will not make war, nor coin 
money: . . . they are prohibited from doing it. 



United States a Union 105 

" They are spoken to by a Superior power, the People. 
There is no one portion of compact, a contract by the States, 
in the whole instrument, 

" Constitution does not rely on the compact, for the fulfil- 
ment of her duty by the State. It requires no State pledge. 
It requires individual oaths. 

" VI. Still reverting to the terms of the Constitution, we 
find that its great apparent purpose is, to unite the people of 
all the States, under one Govt, for certain purposes and to the 
extent of this union, to abrogate the separate authority of the 
State Govts. 

" I. In foreign relations. 

" Congress only can declare war. Ergo, when citizens of 
one State at war, all must be. In this respect, one people. 

"2. Prest. and Senate only can make Peace. ... A 
State cannot continue in war. In this respect, one people. 

"3. Common coin ? Citizens of each State to have privileges 
of citizens in all others. 

"4. In all that relates to common defence, one. Ergo, in 

the common defence ... in Peace ... in war 

in common — in coin and standard, and in mutuality 

of rights of citizenship, the people of all the States are 

ONE PEOPLE. 

" Proclamation rights, ergo, in them. Mr. Monroe . . . 
Nobody disputed Mr. Monroe. Even Va. did not com- 
plain. 

" VII. The very object of the Constitution was, to get rid 
of a league, and make a Govt. This very matter of revenue 
and imposts formed the difficulty. The States cd. not comply 
with the requirements of Congress. All was capricious, from 
beginning of Confd. 

" Mr. Monroe's Rep't. July 1785, read. p. 50, 52. 

" First Resolution of Convention p. IJ4, ig June lySj. 

" Here is a Govt, a national Govt, with power to execute 
itself. This Reso. always the basis of all subsequent proceed- 
ings, ahvays at the head vid. p. 207. Vid: journal. Mr. 
Patterson's proposition to mend the league rejected. Con- 
federacy is a league, and so called. Here, Resolved to have 



io6 Daniel Webster 

a Govt. . . . T\i& wery oh]Qc\. vidiS, to get rid of the power 
of State Votes. 

"Under Confederacy, Congress advised the States; they 
might act or not. 

" If they refused, no remedy but war. 

" However inexpedient, this remedy did exist and did alone 
exist. Mr. Jefferson. 

" The Constitution has reversed this whole state of things. 
We cannot now, make war on the States. We cannot blockade 
Chstn [Charleston] We can only execute the laws. 

" Constitution has given power to make laws, binding on 
individuals. To execute these laws, to make it criminal to 
oppose them . . . and to punish opposers . . . The 
plain object was, to avoid collision with States. 

" Mr. Ellsworth. . . . and Johnson. 

' ' Look to all contemporary history . . . the Federalist 
Debates in the States etc. 

"On one side, object was, to prove necessity of turning 
league into a Govt. 

" On the other, this necessity denied. 

' ' All agreed, that this precise thing was done. 

"In all Debates, in all propositions to amend; not one 
suggestion, anywhere, that this was a compact between 
States. 

" Elliotts Deb. 286, 7, 8. Judge Wilson. 

" Fed. No. 22 p. 139. read. Mr. Madison on population. 

" Why is secession Revolutionary . 

"VIII. History and form of ratification, shows it to be a 
Govt, and not a league. 

"States do not plight faith, as under Confederacy. But 
people of the States adopt, consent to, ratify. Not one single 
case, in which the State accedes to the compact. 

" Accede wd. be a proper word, if it were a league . . . 
was proper, in case of Canada . . . and perhaps of N. O. 
The States have done nothing, of which secession is the 
converse. 

' ' They never acceded to the union ; and can never secede 
from it. 



United States a Union 107 

" The People must reject, what they have adopted; they must 
break up, what they have ratified. 

" 5^" His. of 10 Art. of Amendment, i vol. S. Journal. 
Report 64-73. 

" IX. Finally the People, of each and all the States, 
adopted the Constitution, as an act binding upon all. 

Not that States lines were broken down, and the 
whole people in mass. 

" Not that Va. could outvote Maryland, and leg' her 
in. . . . 

" Question put was, 'will you form a new Govt, over all the 
people . . . with certain powers ... as far as this 
new Govt, extends, will you all become one people.' 

' Instead of the States creating this Govt, will you create 
it yourselves, on yr. own authority? 

" ' If you say yes, here is the Instrument. Agree to this, 
and it is done. 

" It was ratified by the people. St. Govts, would not agree 
to it, beyond their power . . . tho they agreed to old 
Confederacy. 

" ' Shall the Instrument itself contain a declaration that it is 
ordained, not by States, but by the People? // shall.' 

" Here, then is the declaration. 

" Contemporary history shows this to have been the under- 
standing. J^ed. 22. Mr. Madison 104. 

"All agreed, it was founded, if at all, in a grant by the 
people. 

" Some approved this; and some disapproved it. Mr. 
Henry. Va. Ratification. Giles- Tyler. 

" Lastly, these very words, ' We the people.' 

"This, then, is «^/ a league, compact, or confederacy, be- 
tween States, in their separate and sovereign capacities . . . 

" It is a Constitution. It is a Govt., proper: with Legisla- 
tive, Executive, and Judicial powers, of its own. It is founded 
on the adoption and ratification of the People. It creates 
direct relations, of protection on one side, and obedience on 
the other, between itself, and individuals. 



io8 Daniel Webster 

II. 

"No State can dissolve these relations; nor anything but 
Revolution. Can be no secession without Revolution. 

" This follows, of course, if there be an individual tie. 

" The people live under two Govts. . . . owe allegiance 
and obedience to each . . . One cannot break up the 
other. Both are popular and elective. The people rely on 
themselves, to keep each in its sphere. Both created by the 
people . . . both constantly maintained by the People — 
both responsible to the People. 

" The People cannot break up this Govt., but by Revolution. 

" Constitution is without limitation of time. 

" . . . Intended to be perpetual . . . Even Con- 
federacy called perpetual . . . this stronger, or meant to 
be; its objects were of a permanent nature. Adopted for the 
People, and their posterity. It lasts thro all time. 

" . . . There are provisions for its amendfnentj none for 
its abandonnie?it. 

" . . . Provision for letting new States inj none for 
letting old States out. 

" It was intended that under this Constitution, Govt, should 
enter into permanent arrangements with Foreign States; and 
for our commerce. If Congress makes war; may one State 
secede, and make peace. 

" If Prest. makes peace, may one State continue the 
war. 

" Secession, as a Revolutionary Right, is intelligible. 

" As a right under the Constitution, it is a plain absurdity. 

" Even if Cons, a compact between States, there could be 
no legal or moral right to secede. 

" It wd. only be a right, because there wd. be no power but 
that of war, to restrain it. 

' ' We hear much of the Reserved Rights of the States. What 
are they ? Proclamation is right; to know what is reserved, 
we must see what is given. 

" Powers are given; and no right reserved to withdraw, but 
by amendment. Govt, power to retract what ? Negation. . . . 



United States a Union 109 

"Allegiance is given; and no right reserved to withdraw 
it. 

" The right of secession, is a right to break up the Govt. It 
wd. destroy all its great objects. 

" How could we carry on war . . . how make treaties ? 
Who wd. treat with us ? Who credit us ? 

"All the pretence for secession is, that States, by reserved 
power may judge of infraction of Consn. 

" She has reserved no such power. No proof, or intimation 
of any such reservation. 

" Not the slightest evidence, that any such intention was 
entertained by people; but e contra. 

III. 

" There is a Supreme law, consisting of Constitution, Acts 
of Congress, and Treaties; and in cases, not assuming Judicial 
form etc., Congress is the judge; where Judicial form is as- 
sumed, Judiciary is Judge. 

"I. It was intended to make Congress, and the Nat. Ju- 
diciary final arbiters . 

" Resolution . . . Supreme Legislature etc. p. 134. 
13 Reso. p. 137. . . . 

" I. It was universally understood they had done that. 
Both friends and foes sd. that. 

" Fed. 3 No. p. 20 as to treaties and laws of nations, read 
No. 39. p. 241; read. No. 80. p. 495.; read, as marked. 

"2. Elliot's Deb. 390. Mr. Madison 3 Do. 44.5 Yates 
minutes. Grimke 86.7 . . . Mr. Martin . . . Mr. 
Pinkney friends and foes, then, told the People, that this 
power 7vas in the Constitution. 

" 5^" What was the jud. power created for ? 

' ' Jg®"- Vid. : Negative of State Laws etc. 

"3. It is in the Constitution, of necessity it is in every 
Govt. 

" French Treaty. It is in every State Constitution. It is 
an attribute of Govt. It is a part of the old question . . . 
if a league, St. continues. If a Govt. Govt, continues. 



no Daniel Webster 

" There can be no govt. wt. it. whoever acts, must judge 
of their authority. 

" Govt, will act only on one side of the question. 

" This is the alternative; either this Govt, must decide on 
its own power, or those powers must be judged of by 24 
States . 

"Which is fittest? That the agents of all, should decide 
for all, or that one shd. decide for all ? 

" Every agt. that refers acts of Congress to State judgt, 
appeals from the majority to the minority . . . Appeals from 
a comtnon int. to a particular int. 

" The right is sd. to be limited to cases of deliberate pal- 
pable and dangerous violation . . . And this is thought to 
make it safe. But who judges of all this ? What proof is 
reqd. of such violation ? ... It is all opinion, and the 
opinion of one State, by a small majority. 

" The agt. always takes for granted, that in a disputed case, 
the State must be right, and Congress wrong. 

" But suppose the State wrong, what then? Must 23 yield 
to one ? 

" Questions, not assuming a Jud. shape, must be decided, 
and ought to be, by Congress: on the common principle, that 

A MAJORITY MUST GOVERN. 

" . . . Like cases cited by Mr. Bill; and apportionment 
Bill. 

" ' Majority Govt.' 

"Cases assuming Jud. shape must be, and ought to be, 
judged by Sup. court. Ellsworth . 

"No better mode of establishing a final interpretation (?) 
. . . nominated by the Prest. . . . approved by the 
Senate. 

"The very first Congress passed laws, providing for the 
exercise of this jurisdiction. 

" The provisions of the Con. are plain . . . Con. and 
laws, and treaties are suprevie . . . 

" . . , President shall execute them . 

"And Jud. power sJiall extend to every case occurring under 
them. 



United States a Union 1 1 1 

"The whole argt. assumes, always, that Congress acts wt. 
responsibility ... It will not admit that we are Reps 
It thinks only of State power. 

" Members of Congress are amenable to their constituents. 
The remedy for any evil, lies in election, and in amend- 
ment ... 

"If the proved intention of the Convention proves any- 
thing . 

" Or the contemporary admission, of friends and foes . . . 

" Or a course of Jud. decisions, acquiesced in by all the 
States, for 40 years. 

" Or the present opinion of a great majority of the whole 
Country . 

" Or the plain words of the Constitution itself. 

' ' Then there is a Supreme la w and a final interpreta- 
tion. 

IV. Nullification. 

" An attempt by a State to abrogate, annul, or nullify an 
act of Congress etc., or arrest it etc. . . . is a usurpation 
on the genl. Govt. — violates the Constitution and is Revolu- 
tionary . 

" If the Govt, were a cotnpact, the tendency of this proceed- 
ing would be to break it up; because, if one St. not bound., 
others not bound. 

" If one State resists one law, others may resist others. 

" But it is a direct attack on the authority of Govt. It is 
overturning the Govt. 

"To resist the execution of the laws, by force is treason. 
' Can a State commit treason ' — no . . . nor authorize 
others. 

" Treason may be committed agt. So. Carolina ? cd. U. S. 
justify it. 

" Nullification is the same in principle, but less respectable, 
in its general character than entire Secession. It seeks to keep 
in the Govt, while it destroys it. . . . 

"... It enjoys its benefits, while it rejects its burdens . . . 



112 Daniel Webster 

" . . . It partakes of the common counsels, but will not 
submit to their results. 

" . . . It acts as a suspension, over laws of Congress and 
accepts and rejects what it pleases . 

" So. Carolina herself hardly pretends it is a Constitutional 
right, vid. address to People of S. Ca. p. 46. 

' ' These very Resolutions show it no constitutional right. 

" Why is secession Revolutionary i 

" Because there is a Govt. 

*' But to overturn Govt, by NuUification is Equally Revo. 

NIAGARA. 

" What justification /^i;- this Revolution, who does it ? half a 
dozen Ge?it. On what ground ? 

"That protection laws are unconstitutional., plain, deliber- 
ate . . . palpable, dangerous. 

' * Who entertains this opinion. 

" g@" Paper marked ' What cause.' 

"If friends of Nullification could succeed, would prove 
themselves 'Architects of Ruin," and blasters of human 
hope. 

" They stand up to undeceive the world ... to pro- 
nounce the weakness of our system. 

" They declare, that seeds of dissolution are in the Govt. 
— and that it is wonderful it has lasted so long. 

"They deceive themselves. The evil tendency of this 
doctrine is understood. They cannot but see how the cur- 
rent of opinion sets . . . Who is for Nullification, one 
out of 24 . . . and that only by a small majority. 

" No man cheers it. no one cries God save it. 

" It is a subject, either of deep dislike, or habitual ridicule, 
with 9-ioths of the People. 

" This tone of public opinion, and the stand taken by the 
Executive Govt, have annihilated it . . . 

" People will perceive this intention It is not liberty, but 
American Liberty. Liberty bringing with it recollections. . . . 

"Rescue." 



United States a Union 113 

It is interesting to compare the actual peroration 
with the notes at the end of this brief. As a 
prophecy of the uprising of a great people in 1861 
it is one of the most notable in history. 

Mr. Webster concluded his speech as follows : 

" But, Sir, if the government do its duty, if it act with firm- 
ness and with moderation, these opinions cannot prevail. Be 
assured, Sir, be assured, that, among the poHtical sentiments 
of this people, the love of union is still uppermost. They will 
stand fast by the Constitution, and by those who defend it. I 
rely on no temporary expedients, on no political combination; 
but I rely on the true American feeling, the genuine patriotism 
of the people, and the imperative decision of the public voice. 
Disorder and confusion, indeed, may arise; scenes of commo- 
tion and contest are threatened, and perhaps may come. 
With my whole heart, I pray for the continuance of the do- 
mestic peace and quiet of the country. I desire, most 
ardently, the restoration of affection and harmony to all its 
parts. I desire that every citizen of the whole country may 
look to this government with no other sentiments than those 
of grateful respect and attachment. But I cannot yield even 
to kind feelings the cause of the Constitution, the true glory 
of the country, and the great trust which we hold in our hands 
for succeeding ages. If the Constitution cannot be maintained 
without meeting these scenes of commotion and contest, how- 
ever unwelcome, they must come. We cannot, we must not, 
we dare not, omit to do that which, in our judgment, the 
safety of the Union requires. Not regardless of conse- 
quences, we must yet meet consequences; seeing the hazards 
which surround the discharge of public duty, it must yet be 
discharged. For myself. Sir, I shun no responsibility justly 
devolving on me, here or elsewhere, in attempting to maintain 
the cause. I am bound to it by indissoluble ties of affection 
and duty, and I shall cheerfully partake in its fortunes and its 
fate. I am ready to perform my own appropriate part, when- 
ever and wherever the occasion may call on me, and to take 

8 



114 Daniel Webster 

my chance among those upon whom blows may fall first and 
fall thickest. I shall exert every faculty I possess in aiding 
to prevent the Constitution from being nullified, destroyed, or 
impaired ; and even should I see it fall, I will still, with a voice 
feeble, perhaps, but earnest as ever issued from human lips, 
and with fidelity and zeal which nothing shall extinguish call 
on the PEOPLE to come to its rescue.'" 

The Force Bill passed the Senate on the 20th of 
February, 1833. It is not too much to say that 
the success of that measure was due to the support 
of Mr. Webster. 

The debate on this measure, its adoption, and 
the well-known character of the President, con- 
vinced the nullifiers that they would have to reckon 
with the whole power of the general government' 
if they should persist in their refusal to obey the 
laws for the collection of duties on imports. Mr. 
Clay's compromise tariff law, which was passed 
just before the end of the session, no doubt made 
it easier for them to yield, and they yielded. Mr. 
Clayton, of Delaware, insisted that it should not 
pass unless Mr. Calhoun himself and all his asso- 
ciates voted for it, and vote for it they did." 

Andrew Jackson's opinion of the situation cre- 
ated by the passage of the two bills is contained in 
the following letter to his wife's nephew : 

" Private. 

"Washington, May ist, 1833. 

"My Dr. Sir, 

" I have just received your letter of the 6th ultimo, and 

have only time, in reply, to say that Genl. Coffee well under- 

• Webster's Writings and Speeches, vol. vi., p. 237. 

"^ A very interesting account of the framing of this compromise is con- 
tained in Benton's Thirty Years' View, vol. i., pp. 313, 334- 



United States a Union 115 

• 

stood Mr. Shackleford, and urged your nomination in his 
stead. I had nominated you, but on the serious importunity 
of Col. King, your Senator, with Genl. Coffee, the change was 
adopted, and you nominated for the office you now fill. Be- 
fore the receipt of yours Genl. Coffee had written me and re- 
quested that I would appoint you to the office vacated by Mr. 
Shackleford — if we had a Senate on whose principles we could 
rely, this would have been done, but I did not believe it would 
be prudent to bring your name before the Senate again, and 
am happy you are content where you are. 

" The Senate can not remove you, and I am sure your faith- 
fulness and honesty will never permit you to do an act that 
will give good cause for your removal, and if Moor and Poin- 
dexter discovered that you were related to me, that would be 
sufficient cause for them to reject you, therefore it is that I let 
well enough alone, 'altho' I know it would be a convenience to 
you to be located where you are. Still a rejection by the 
Senate might prove a greater inconvenience, and for the 
reasons assigned it was not done. 

" I have had a laborious task here, but nullification is dead, 
and its actors and abettors will only be remembered by the 
people to be execrated for their wicked designs to sever and 
destroy the only good government on the globe, and that 
prosperity and happiness we enjoy over every other portion of 
the world. Haman's gallows ought to be the fate of all such 
ambitious men who would involve their country in civil war 
and all the evils in its train, that they might reign, and ride on 
the whirlwind and direct the storm. The free people of these 
United States have spoken, and consigned these wicked dema- 
gogues to their proper doom. Take care of your nullifiers, 
you have them amongst you — let them meet with the indignant 
frowns of every man who loves his country. 

" The Tariff, it is now well known was a mere pretext — its 
burthen was on your coarse woollens — by the law of July, 1S32 
— coarse woollens was reduced to five per cent, for the benefit 
of the South. Mr. Clay's bill takes it up and drops it with 
woollens at 50 per cent. — reduces it gradually down to 20 per 
cent., and there it is to remain, and Mr. Calhoun and all the 



ii6 Daniel Webster 

nullifiers agree to the principle. The cash duties and home 
valuation will be equal to 15 per cent, more, and after the year 
1842 you pay on coarse woollens 35 per cent. — if this is not 
protection I cannot understand, and therefore the tariff was 
only the pretext, and disunion and a Southern Confederacy 
the real object — the next pretext will be the negro or slavery 
question. My health is not good but is improving a little. 
Present me kindly to your lady and family, and believe me to 
be your friend. I will always be happy to hear from you. 

" Andrew Jackson. 
"The Revd. Andrew J. Crawford.'" 

Nothinof is more honorable in Mr. Webster's 
career than the courage and determination with 
which he went to the support of the President of 
the United States in the emergency created by the 
Nullification Ordinance. Webster had been one 
of the most formidable opponents of Jackson's 
arbitrary policy. He had especially condemned in 
the most vigorous and effective language the presi- 
dential veto of the bill to continue the charter of 
the Bank of the United States. The President's 
course in reference to this bank led to great finan- 
cial suffering throughout the whole Union. His re- 

' This letter is published at length, because of its intrinsic interest. It 
was made public by Charles Sumner in December, i860. Its publication 
caused Mr. Crawford, who still resided in the South, so much annoyance, 
that he destroyed it. Before its destruction a few fac-similes were made. 
One was presented by Charles Francis Adams to the Massachusetts Histori- 
cal Society. Another is in the author's possession. Pierce, Life of Sumner, 
vol. iv., pp. 18, 19. Mass. Hist. Soc. Proceedings, vol. xiv. (Second Series), 
p. 370. 

The way in which the duty on coarse woollens, referred to in the letter, 
came to be inserted in the bill, is related in Benton's Thirty Years' View, 
vol. i., p. 319. It was done to favor two or three manufacturers in Con- 
necticut, and thereby to get votes from that State. It shows that tariff 
bills were arranged in 1833 much as they were in 1897, except that the 
rates are much higher now than they were in 1833. 



United States a Union 1 1 7 

moval of the government deposits from that bank 
was an act of arbitrary power. The Whig party 
opposed these measures, both in Congress and out 
of it. Yet we find the great Whig leader, when the 
nation's life was in peril, hastening with all his 
resources to the support of a political opponent' 
It is a melancholy reflection that at a later period 
of the history of the United States, when President 
Cleveland was confronted with the emergency 
caused by the constant withdrawals of gold from 
the treasury, to an extent which within three weeks 
would have depleted the treasury of gold and put 
the country upon a silver basis, he was obliged to 
exert the powers conferred by a previous statute 
without any support from his political opponents 
in Congress. Nothing in their whole course was 
more discreditable to them than this absolute re- 
fusal to aid the President in his struggle to main- 
tain the honor and good faith of their common 
country.^ 

> A just tribute from a political opponent to Mr. Webster's patriotism, in 
this emergency, is to be found in Benton's Thirty Years' View, vol. i., p. 333. 



CHAPTER XI 

POWER OF THE UNITED STATES OVER ACQUIRED TER- 
RITORY WHEN ADMITTED AS A STATE 

NEW ORLEANS VS. UNITED STATES 

In 1836, Mr. Webster argued successfully one 
other case in which the effect of cession of territory 
to the United States was involved. This was the 
case of New Orleans vs. The United States.^ When 
Napoleon ceded Louisiana to the United States it 
was declared in the treaty (Article Second) that 
" in the cession are included the adjacent islands 
belonging to Louisiana, and all public lots and 
squares, vacant lands and all public buildings." In 
the city of New Orleans there was a strip of vacant 
land between the buildings of the city and the river. 
This was used as a quay. It was protected from 
the waters of the Mississippi by a levee. This 
strip became very much enlarged by alluvial de- 
posits. Mr. Webster, in his argument, states the 
facts clearly^: 

" The sinking of a frame of lumber, at the expense of the 
inhabitants of New Orleans, at a particular place in the river, 
opposite to the city, for the protection of the ground, has con- 
tributed to the rapid and extensive enlargement of the open 

* Reported 10 Peters, 662 (1836). 
^ 10 Peters, 672. 

118 



Power over Acquired Territory 119 

space in front of the City. This enlargement has placed the 
levee, used for the purposes of trade farther in advance of the 
City, and has left the ground now in controversy, in such a 
situation as not to be reijuired for the uses of commerce. The 
corporation of New Orleans therefore proposes to sell and dis- 
pose of it, to be occupied and improved by those who may de- 
sire to purchase it." 

The United States claimed the title to this strip 
of land under the treaty before mentioned. It was 
clearly shown that the Spanish government, and 
afterwards the French government, had exercised 
authority over this quay. To quote again from 
Mr. Webster's argument (p. 673) : 

" The plans referred to show that there was always an open 
space fronting on the river, and the uses of it were only such 
as were consistent with the public use. A custom house; a 
parade ground for the military; barracks for the soldiers, were 
erected upon it. These were permitted; but they did not 
destroy the title of the citizens to it, nor did such uses convert 
it into public domain." 

With this statement of facts it is easy to appre- 
ciate the force of Mr. Webster's argument (p. 674) 
upon the law : 

" The sovereignty of Spain over this property existed before 
the cession, for the sole purpose of enforcing the uses to which 
it was appropriated. This right and the obligations imposed 
upon it became vested in the State of Louisiana and did not 
continue in the United States after the State was formed. 
Acquiesced in by the United States under the treaty in the 
first instance, it necessarily afterwards passed to the State. 
The United States cannot now enforce this use and could not 
take the quay and dispose of it; and unless this can be done 
there is nothing to support this action. The preservation and 



I20 Daniel Webster 

the enforcement of the use must be by the state government. 
By the act of Congress incorporating the City of New Orleans 
all the use of property became vested in the city." 

The Supreme Court held that the federal juris- 
diction could not be enlarged by the treaty-making 
power, and that when the State of Louisiana was 
admitted into the Union she was admitted on the 
same footing as the original States. Consequently 
whatever general jurisdiction over localities had 
been vested in Spain or France, was then vested 
in the State of Louisiana and not in the federal 
government. 



CHAPTER XII 

EFFECT OF GRANT OF ONE FRANCHISE UPON POWER 

TO GRANT RIVAL FRANCHISE THE CHARLES 

RIVER BRIDGE CASE 

In the January term of 1837, the case of the 
Charles River bridg^e was decided.^ As lonor aeo 
as 1826, Webster had been consulted in reference 
to a bill pending before the Legislature of Massa- 
chusetts, for the construction of a new bridge over 
the Charles River. At that time he declined to 
give an opinion, though he called attention to 
some of the difficulties in the case.^ 

The case was this. Even before 1640, a ferry- 
had been maintained between Boston and Charles- 
town over the Charles River. This continued, 
until, in 1785, a corporation was incorporated by the 
Commonwealth of Massachusetts with authority 
to build a bridge in the place where the ferry was 
then run, and to take tolls. It was accordingly 
built, and was opened for passengers on the 1 7th of 
June, 1786. In 1792, the charter was extended to 
seventy years from the opening of the bridge, and 
it was enacted that at the expiration of that time 
the bridge was to belong to the Commonwealth. 

' Charles River Bridge vs. Warren Bridge, ii Peters, 420. 
'Webster's Letters, Van Tyne, p. 117. 

121 



122 Daniel Webster 

In 1828, the Legislature of Massachusetts incor- 
porated a new company for the purpose of build- 
ing a bridge, near that of the old company, to be 
known as the Warren bridge. 

" The Warren bridge, by the terms of its charter, was to be 
surrendered to the State as soon as the expenses of the pro- 
prietors in building and supporting it should be reimbursed, 
but this period was not in any event to exceed six years from 
the time the Company commenced receiving toll. . . . " 

" In the argument here," said Chief Justice Taney, " it was 
admitted that since the filing of the supplemental bill a suffi- 
cient amount of toll had been received by the proprietors of 
the Warren bridge to reimburse all their expenses, and that 
the bridge is now the property of the State and has been made 
a free bridge, and that the value of the franchise granted to 
the proprietors of the Charles River bridge has by this means 
been entirely destroyed." ' 

Mr. Webster's argument was based upon two 
propositions. First, that the grant to the proprie- 
tors of the Charles River bridge was a contract and 
that it could not be impaired by subsequent legis- 
lation. Second, that to destroy the value of the 
franchise was to take the franchise itself, and 
that the State could not do this without making 
compensation. 

The Supreme Court did not deny the soundness 
of the first proposition, but held that the contract 
involved in that grant was to be strictly construed 
and that the grantee could claim nothing that was 
not clearly given by the charter. The conclusion 
was drawn that as no express grant was made of an 
exclusive privilege, none was to be implied. 

'11 Peters, 537, 538. 



Power to Grant Rival Franchises 123 

This was the first important constitutional argu- 
ment in which Mr. Webster was unsuccessful. The 
case itself was both important and difhcult. The 
Massachusetts Supreme Judicial Court was equally 
divided upon the questions involved, and for that 
reason the original suit brought by the Charles 
River Bridge Company to enjoin the construction 
of a parallel bridge from Boston to Charlestown 
was dismissed. In the Supreme Court of the 
United States three of the Justices thought the 
right of the plaintiff to an injunction clear. Four 
were of the opinion that the act of the legislature 
of Massachusetts, authorizing the construction of a 
new bridge, did not impair the obligation of the 
contract contained in the charter of the old bridge 
company, and for that reason, affirmed the judg- 
ment of the court below. 



CHAPTER XIII 

RIGHTS OF CORPORATIONS IN OTHER STATES — COMITY 
BETWEEN STATES BANK OF AUGUSTA V. EARLE 

There are many other causes which will be for- 
ever associated with the name of Webster and to 
which he gave the full force of his keen logic, the 
vivid clearness of his masterly analysis, the pictur- 
esque beauty of his felicitous statement, which in 
itself was argument, and above all, the power of 
that eloquence which he has himself so perfectly 
described, — " The clear conception outrunning the 
deductions of logic, the high purpose, the firm 
resolve, the dauntless spirit." But the scope of 
this volume is limited mainly to his arguments on 
questions of constitutional and international law. 
One of the most notable is The Bank of Augusta 
against Earle, as it is reported ^ ; The Bank of the 
United States against Primrose, as his argument 
is entitled in his public speeches.^ The cases in- 
volved the same questions, were argued in succes- 
sion in February, 1839, and decided simultaneously. 

The judgments of the courts below were re- 
versed, and the right of a corporation chartered 
under the laws of one State of this Union to do 
business in any other State was sustained. Thus 

1 13 Peters, 519. ^ Webster's Works, vol. v., p. 106, 

124 



Comity between States 125 

was associated enterprise freed from unjust dis- 
crimination. To curb the unlawful ambition of these 
associations has fallen to the lot of a later genera- 
tion. In Webster's day the country needed strength. 
To-day it needs restraint. The power and authority 
which he vindicated are adequate to this restraint. 

It is to be observed that the effect of this de- 
cision is not to deprive the several States of the right 
to regulate corporations doing business within their 
limits, because they are incorporated under the laws 
of another State. On the contrary, State legislation 
regulating the transaction within such State of bank- 
ing, insurance and other business, by corporations of 
other States, is very common and is constitutional.^ 

Were it otherwise, a corporation incorporated 
under the laws of New Jersey might be more free 
from restraint in New York than one of its own 
corporations. This, certainly, was not the inten- 
tion of the Constitution. Indeed, in many respects 
these intangible beings, the creation of law, are 
subject to more varied regulation by the State 
than are the individuals who compose them. This 
is but just, for their actual powers are far greater ; 
and in many cases their charters are perpetual. 

The decisions of the courts in Alabama had 
been that a corporation incorporated under the 
laws of one State had no right to do business in 
another. Corporations had not then attained the 
proportions they have since reached. But, never- 
theless, the advantages derivable from corporate 

' Diamond Glue Company vs. United States Glue Co., 187 U. S. Rep., 
611 (1903). 



126 Daniel Webster 

franchises were appreciated and the importance of 
this question attracted pubHc attention and gave 
to the review in the Supreme Court the name of 
" The Great Appeal Case from Alabama." 

Mr. Webster argued, in the first place, that the 
right of a citizen of one State to sue citizens of 
another State in the federal courts was secured 
by the Constitution ; that the Supreme Court had 
held that under this provision a corporation incor- 
porated under the law of one State might sue in 
another ; that to bring a suit was certainly a cor- 
porate act, and that the right to do business in one 
State, of the citizens of another who had become 
stockholders in a corporation incorporated under 
the laws of the latter, was not divested because 
of the corporate form under which they acted. 

Secondly, he argued that independently of spe- 
cific constitutional guaranties the courts must hold 
that at least the same comity existed between the 
several States of the Union as that between them 
and foreign nations ; and that by this comity a 
corporation incorporated in one State could make 
a contract in another. 

To quote briefly from this argument •} 

" The law of comity is a part of the law of nations; and it 
authorizes a corporation of any State to make contracts beyond 
the limits of that State. 

" How does a State contract ? How many of the States of 
this Union have made contracts for loans in England! A State 
is sovereign, in a certain sense. But when a State sues, it sues 
as a corporation. When it enters into contracts with the citi- 
zens of foreign nations, it does so in its corporate character. 

' Webster's Works ^ vol. vi., pp. 120, 122. 



Comity between States 127 

I now say, that it is the adjudged and admitted law of the 
world, that corporations have the same right to contract and 
to sue in foreign countries that individuals have. By the law 
of nations, individuals of other countries are allowed in this 
country to contract and sue; and we make no distinction, in 
the case of individuals, between the right to sue and the right 
to contract. Nor can any such distinction be sustained in law 
in the case of corporations. Where, in history, in the books, 
is any law or dictum to be found, (except the disputed case 
from Virginia,) in which a distinction is drawn between the 
rights of individuals and of corporations to contract and sue 
in foreign countries in regard to things generally free and open 
to everybody ? In the whole civilized world, at home and 
abroad, in England, Holland, and other countries of Europe, 
the equal rights of corporations and individuals, in this respect, 
have been undisputed until now, and in this case; and if a dis- 
tinction is to be set up between them at this day, it lies with 
the counsel on the other side to produce some semblance of 
authority or show of reason for it. 

" The term ' sovereignty ' does not occur in the Constitution 
at all. The Constitution treats States as States, and the 
United States as the United States; and, by a careful enu- 
meration, declares all the powers that are granted to the 
United States, and all the rest are reserved to the States. If 
we pursue to the extreme point the powers granted and the 
powers reserved, the powers of the general and State govern- 
ments will be found, it is to be feared, impinging and in con- 
flict. Our hope is, that the prudence and patriotism of the 
States, and the wisdom of this government, will prevent that 
catastrophe. For myself, I will pursue the advice of the court 
of Deveaux's case; I will avoid nice metaphysical subtilties, 
and all useless theories ; I will keep my feet out of the traps in 
general definition; I will keep my feet out of all traps; I will 
keep to things as they are, and go no farther to inquire what 
they might be, if they were not what they are. The States 
of this Union, as States, are subject to all the voluntary and 
customary law of nations." 



128 Daniel Webster 

The opinion of the court in the case of the Bank 
of Augusta vs. Earle was dehvered by Chief 
Justice Taney, who had been appointed by Presi- 
dent Jackson to succeed Chief Justice Marshall. 
The court sustained the position secondly main- 
tained by Webster in the following language : 

" It has, however, been supposed that the rules of comity 
between foreign nations do not apply to the states of this 
Union; that they extend to one another no other rights than 
those which are given by the Constitution of the United 
States; and that the courts of the general government are not 
at liberty to presume, in the absence of all legislation on the 
subject, that a state has adopted the comity of nations towards 
the other states, as a part of its jurisprudence; or that it ac- 
knowledges any rights but those which are secured by the Con- 
stitution of the United States. The Court thinks otherwise. 
The intimate union of these States, as members of the same 
great political family; the deep and vital interests which bind 
them so closely together, should lead us, in the absence of 
proof to the contrary, to presume a greater degree of comity 
and friendship, and kindness towards one another, than we 
should be authorized to presume between foreign nations. 
And when (as without doubt must occasionally happen), the 
interest or policy of any State requires it to restrict the rule, 
it has but to declare its will, and the legal presumption is at 
once at an end. But until this is done, upon what grounds 
could this Court refuse to administer the law of international 
comity between these States ? They are sovereign States; and 
the history of the past, and the events which are daily occur- 
ring, furnish the strongest evidence that they have adopted 
towards each other the laws of comity in their fullest extent." ' 

' 13 Peters, 590. This opinion was in 1903 quoted and applied by the 
New York Court of Appeals to support the validity of a statute punishing 
as perjury the making in New York of a false affidavit required by the laws 
of another State. People vs. OTarrell, 175 N. Y., 323. 



CHAPTER XIV 

GIRARD WILL CASE RHODE ISLAND BOUNDARY CASE 

CASE OF " THE LEXINGTON " 

During the administration of Harrison and Ty- 
ler, Mr. Webster rarely appeared in the Supreme 
Court. During most of that time he was Secretary 
of State, and was negotiating the Ashburton treaty 
with Great Britain. When he resigned and re- 
turned to Boston, he was engrossed with his prac- 
tice in Massachusetts. 

There were three cases decided at the January 
term of 1841 in which he appeared, one in 1842, 
one in 1843 and two in 1844. In one of these 
latter, the Girard Will case,^ he made his famous 
argument in support of the proposition that a will, 
which by necessary effect compelled the instruction 
of young men without any religious teaching what- 
ever, was opposed to public policy, and invalid. 
The Court, however, construed the will differently, 
so as to hold that no such prohibition was to be 
implied, and the main question which he argued 
was not decided.^ 

Another of the cases argued during this time 
was the boundary controversy between the State of 

' Vidal vs. Girard's Executors, 2 How., 127. 

' His speech is in 6 Webster's IVorl-s, p. 133. 

9 

129 



I30 Daniel Webster 

Rhode Island and the Commonwealth of Massa- 
chusetts/ The final argument in this case was at 
the December term of 1845.' ^^i this case Web- 
ster and Choate were together, and succeeded in de- 
feating the claim of the State of Rhode Island to 

o 

a revision of the boundary line which had been run 
by Joint Commission in 1711. This was the case 
in which Rufus Choate gave the famous description 
of the line as laid down by the original charter : 
" beginning at a hive of bees in swarming time and 
runningf thence to a hundred foxes with firebrands 
tied to their tails." 

In 1845, Webster succeeded Choate as Senator 
from Massachusetts. Two years later, he argued 
for the libellants the famous case of the New Jersey 
Steam Navigation Company against the Merchants 
Bank of Boston, decided early in 1848.^ In this 
case his contention was sustained by the Court, 
and it was held that the Admiralty jurisdiction of 
the courts of the United States extended to a libel 
in personam upon a contract for the transportation 
of specie upon the waters of Long Island Sound, 
from New York to Stonington, and thence by land 
to Boston, and that an agreement in the bill of 
lading, purporting to exempt the carrier from the 
consequences of negligence, was void, as against 
public policy ; although it was conceded in the 
opinion delivered by Mr. Justice Nelson that the 

1 15 Peters, 233. * 4 Howard, 591. 

' 6 Howard, 344. It may be noted here for the benefit of the lay reader, 
that in the Admiralty courts the plaintiff is known as libellant. He files his 
libel at the beginning of the suit. 



Admiralty Jurisdiction Inland Waters 131 

exemption would be valid if the loss had not been 
occasioned by negligence. 

This litigation grew out of the burning of the 
steamboat Lexington, upon Long Island Sound. 
The evidence showed that the vessel was im- 
properly constructed, and inadequately equipped, 
that no safeguards were used against overheating 
of the smokestacks, that the combustible cargo was 
stowed in dangerous proximity to them, and that 
there were no suitable appliances for extinguishing 
the fire which broke out. In fact, the only buckets 
that appeared to be available were the little barrels 
in which the silver dollars of the libellant were 
packed. These were broken open, the contents 
emptied and the barrels filled with water, which 
was thrown on the flames. But these gained too 
rapidly, the boat herself was consumed, and most 
of her passengers suffocated, or drowned. In such 
a case even the statute for the limitation of the 
liability of carriers would have been no defence. 

Mr. Webster's argument in this case is not con- 
tained in any edition of his works, and the report in 
Howard ' is meagre. But enough appears to show 
that he illuminated the grant in the Constitution of 
Admiralty jurisdiction to the courts of the United 
States by a clear exposition, not only of the Eng- 
lish, but of the European Admiralty law, and a dem- 
onstration of the importance to the commerce of 
the country of a liberal interpretation of the grant. 
Mr. Justice Daniels was at that time the adver- 
sary of the Admiralty, and in several dissenting 

' 6 Howard, 344. 



132 Daniel Webster 

opinions did his best to convince the Court that 
the jurisdiction of the Admiralty ought to be re- 
stricted within the narrowest limits. Lord Coke 
himself could not have done better. 

But Webster's argument prevailed. A portion 
of this argument should be quoted here. The 
principles stated in it, which the reporter says he 
" illustrated " in his argument, have been followed 
by the Supreme Court ever since : 

" The court having decided that the constitutional grant of 
admiralty and maritime jurisdiction to the government of the 
United States is not to be limited by the rules which restrained 
the English admiralty in 1789, it follows of course, that the 
jurisdiction of the courts of the United States should naturally 
be coextensive with the granted power, unless Congress has 
otherwise declared; and as the Judiciary Act of 1789, section 
ninth, expressly vests in the District Courts of the United 
States original cognizance of all civil causes of admiralty and 
maritime jurisdiction, then whatever this court adjudges to be 
a case of admiralty and maritime jurisdiction belongs originally 
to the District Court, and invests that court necessarily with 
the power of all process and proceedings fit and proper for the 
exercise of its jurisdiction, subject to regulation by Congress. 

"It is not, probably, doubted that the grant of admiralty 
and maritime jurisdiction to the government of the United 
States is exclusive, or that no State now retains any such 
power; and so absolutely indispensable has such a jurisdiction 
been found to be on the interior lakes and rivers, that Con- 
gress has been obliged to provide, and has provided, for its 
exercise on those waters. See Act of 1845. 

" The only objection to this necessary law seems to be, that 
Congress, in passing it, was shivering and trembling under the 
apprehension of what might be the ultimate consequence of 
the decision of this court in the case of the Thomas j^efferson. 
It pitched the power upon a wrong location. 



Admiralty Jurisdiction Inland Waters 133 

" Its proper home was in the admiralty and maritime grant, 
as in all reason, and in the common sense of all mankind out 
of England, admiralty and maritime jurisdiction ought to ex- 
tend, and does extend, to all navigable waters, fresh or salt.'" 

From the time of the decision of this case to the 
present, most maritime causes have been brought 
in the federal courts of Admiralty. Their decisions 
constitute a body of commercial law, relating es- 
pecially to bills of lading, charter parties, marine 
insurance and collisions, which is liberal in its char- 
ter, harmonious in most respects with the jurispru- 
dence of England and the continent of Europe and 
which has played no small part In the expansion of 
American commerce. It is true that the more nar- 
row spirit which has prevailed in federal legislation 
forbids American citizens to buy foreign-built ships. 
But their charter is not forbidden, and American 
citizens, under foreign flags, and in chartered ves- 
sels, already reap their share of the harvest of ocean 
commerce. That their business has not been re- 
stricted by the conflicting decisions of the courts 
of diff^erent States, is due in large degree, not only 
to Mr. Webster's argument in this case of the Lex- 
ington, but to the canons of interpretation, just, be- 
cause broad and liberal, which, more than any other 
man, he aided to establish. 

•6 Howard, U. S. Rep. 378. 



CHAPTER XV 

EMINENT DOMAIN OVER FRANCHISE WEST RIVER 

BRIDGE CASE 

At the December term, 1847, Mr. Webster ar- 
gued the case of the West River Bridge Co. vs. 
Dix and the Towns of Brattleboro and Dum- 
merston.^ In this case it was held that the consti- 
tutional power of eminent domain extended to a 
franchise which had been given by the State to a 
private corporation, and that therefore the State 
could take a toll-bridge which had been built by a 
private corporation, appropriate it to the public 
use, and make it a free bridge, upon making the 
original owner compensation in the manner regu- 
lated by law, and that this did not impair the obli- 
gation of the contract between the State and the 
original grantee. 

In this case the judgment of the Supreme Court 
of Vermont was affirmed. The Supreme Court of 
the United States was of opinion that the rights of 
the citizen were sufficiently protected by the pro- 
visions of the statute for ascertaining and paying 
the value of the franchise. Webster's argument, 
which is not included in his published works, puts 
the case so clearly that it deserves to be extracted 

' 6 Howard, 507. 
134 



Eminent Domain over Franchise 135 

from the volume of the reports in which it is now 
laid away.^ 

"All the power of the States, as sovereign States, must 
always be subject to the limitations expressed in the United 
States Constitution, nor can they any more be permitted to 
overstep such limitations of power by the exercise of one 
branch of sovereignty than another. What is forbidden to 
them, and which they cannot do directly, they should not be 
permitted to do by color, pretence, or oblique indirection. 
Among other matters limiting and restricting State sovereignty 
is this: — No State shall pass ' any law impairing the obligation 
of contracts.' The power of eminent domain, like every other 
sovereign power in the State, is subject to this limitation and 
prohibition. Laws creating corporations, with powers for the 
benefit of the individual corporators, even though for public pur- 
poses, like turnpikes, railroads, toll-bridges, etc., have always, 
and by almost every court in the Union, and by this court, 
been decided to be contracts between the government and the 
corporators. The plaintiff's grant and franchise was a con- 
tract of the State for one hundred years, and by this act 
of 1839, and the proceedings under it, that contract is not 
only impaired, but utterly destroyed; and this a State can no 
more do under the power of eminent domain, than under the 
law-making power, or any other power of sovereignty. It is 
said, the citizen is safe, because, under the exercise of the 
eminent domain, he is to receive compensation for whatever is 
taken. That furnishes no security, for the mode and amount 
of compensaion is fixed ex parte by the government and its 
agents; and, besides that, the prohibition of the Constitution 
is general, and contains no exception for this exercise of this 
power of eminent domain as to contracts. 

" If the provision of the Constitution, which forbids the im- 
pairing of contracts, does not extend to the contracts of the 
State governments, and they are left subject to be destroyed 
by the eminent domain, then there is an end of public faith. 
It is said, by every writer, and by almost every court which 

'6 Howard U. S. Rep., 517. 



136 Daniel Webster 

has passed on this subject, the eminent domain, that it must 
rest with ' the legislative power to determine when public uses 
require the assumption of private property,' and to regulate 
the mode of compensation. (2 Kent's Comm., 340.) If to 
this it be holden that this extends even to contracts of the gov- 
ernment itself, then it follows, that the State of Mississippi, or 
any other State indebted, has but by law to declare that the 
public good requires that the State debts, bonds, etc., shall be 
taken for the public use, and appoint commissioners to fix 
their present market value to the holders, and, on payment 
thereof, declare them extinguished. Such is the real character 
of this transaction. ' ' 



CHAPTER XVI 

POWER TO REORGANIZE STATE GOVERNMENTS DORR 

REBELLION 

The Colonial Charter of Rhode Island had, in 
1 84 1, become in many particulars inapplicable to 
the changed conditions of the State. Attempts to 
amend it, in the manner prescribed by law, had 
failed. Then those who were dissatisfied attempted 
to establish a new government by calling a consti- 
tutional convention without any express authority 
of law. A constitution was framed and submitted 
to the people at an election. The opponents of 
the new constitution refused to recoofnize the elec- 
tion or to vote. An election did, however, take 
place, which was claimed to be valid by the par- 
ties interested in it, and at which they claimed 
that a majority of male citizens of twenty-one 
years of age voted for the new constitution. 
They elected a new set of officials, Governor, 
Legislature and all. Thomas W. Dorr was the 
head of the new government, and from him it 
took its name. The government under the old 
charter maintained its own authority, declared 
martial law, suppressed the new government and 
Dorr himself was tried for treason in 1844, in 

137 



138 Daniel Webster 

the Supreme Court of Rhode Island, was con- 
victed and sentenced to imprisonment for life.^ 
The President of the United States recognized the 
old and not the new government. Nevertheless, 
Dorr's adherents finally tested the question as to 
the validity of their proceedings, in an action of 
trespass brought in the Circuit Court of the United 
States, and reviewed on writ of error in the Su- 
preme Court in 1848.^ 

That court followed Webster's argument and 
held that the determination of what was the duly 
constituted government of a State was a political 
and not a judicial question ; that Congress by the 
Act of February 28, 1795, had authorized the Presi- 
dent to decide this question, and that his decision 
was final. It further held that a State Legislature, 
in the presence of armed rebellion, had the power 
to declare martial law, and that it was for the 
Legislature to judge whether the exigency was 
such as to require this declaration.^ 

Mr. Webster's argument in this case is included 
in his published works.^ A brief extract from it 
will show his mastery of the principles underlying 
the case and which were decisive of the controversy. 
Equally decisive were they of the later controversy 

^ Dorr was a member of one of the old patrician families of Rhode Island. 
His zealous advocacy of the popular cause alienated his friends and kins- 
folk, and although he was pardoned, after a short imprisonment, he died 
soon after, a heartbroken man, 

^An interesting account of this "Dorr Rebellion" is to tie found in a 
speech of Henry Clay, delivered at Lexington, Ky,, June 9, 1842. Clay's 
Works, vol. vi., p. 380. 

^Luther vs. Borden, 7 How., U. S. Rep., i (184S). 

* Webster's Works, vol. vi., p. 217. 



Dorr Rebellion 139 

between North and South. As his argument is 
reported by Howard, he said ' : 

" This is an unusual case. During the years 1841 and 1842, 
great agitation existed in Rhode Ishmd. In June, 1842, it sub- 
sided. The Legislature passed laws for the punishment of 
offenders, and declared martial law. The grand jury indicted 
Dorr for treason. His trial came on in 1844, when he was con- 
victed and sentenced to imprisonment for life. Here is a suit 
in which the opposite counsel say that a great mistake has hap- 
pened in the Courts of Rhode Island; that Governor King 
should have been indicted. They wish the Governor and the 
rebel to change places. If the Court can take cognizance of 
this question, which I do not think, it is not to be regretted 
that it has been brought here. It is said to involve the funda- 
mental principles of American liberty. This is true. It is 
always proper to discuss these, if the appeal be made to reason, 
and not to the passions. There are certain principles of lib- 
erty which have existed in other countries, such as life, the 
right of property, trial by jury, etc. Our ancestors brought 
with them all which they thought valuable in England, and 
left behind them all which they thought were not. Whilst 
colonies, they sympathized with Englishmen in the Revolution 
of 1688. There was a general rejoicing. But in 1776 the 
American people adopted principles more especially adapted 
to their condition. They can be traced through the Confed- 
eration and the present Constitution, and our principles of 
liberty have now become exclusively American. They are 
distinctly marked. We changed the government where it 
required change; where we found a good one, we left it. 
Conservatism is visible throughout. Let me state what I 
understand these principles to be. 

" The first is, that the people are the source of all political 
power. Every one believes this. Where else is there any 
power ? There is no hereditary legislature, no large property, 

' 7 Howard, U. S. Rep., 29. Whether this abstract was prepared by Web- 
ster himself cannot be ascertained. But it is a fair summary of his argument. 



HO Daniel Webster 

no throne, no primogeniture. Everybody may buy and sell. 
There is an equality of rights. Any one who should look to 
any other source of power than the people would be as much 
out of his mind as Don Quixote, who imagined that he saw 
things which did not exist. Let us all admit that the people 
are sovereign. Jay said that in this country there were many 
sovereigns and no subject. A portion of this sovereign power 
has been delegated to government, which represents and speaks 
the will of the people as far as they chose to delegate their 
power. Congress have not all. The State Governments have 
not all. The Constitution of the United States does not speak 
of the government. It says the United States. Nor does it 
speak of State governments. It says the States; but it recog- 
nizes governments as existing. The people must have repre- 
sentatives. In England, the representative system originated, 
not as a matter of right, but because it was called by the king. 
The people complained sometimes that they had to send up 
burgesses. At last there grew up a constitutional representa- 
tion of the people. In our system it grew up differently. It 
was because the people could not act in mass, and the right to 
choose a representative is every man's portion of sovereign 
power. Suffrage is a delegation of political power to some in- 
dividual. Hence the right must be guarded and protected 
against force or fraud. That is one principle. Another is, 
that the qualification which entitles a man to vote must be 
prescribed by previous laws, directing how it is to be exercised, 
and also that the results shall be certified to some central 
power so that the vote may tell. We know no other principle. 
If you go beyond these, you go wide of the American track. 
One principle is, that the people often limit their government; 
another, that they often limit themselves. They secure them- 
selves against sudden changes by mere majorities. The fifth 
article of the Constitution of the United States is a clear proof 
of this. The necessity of having a concurrence of two thirds 
of both houses of Congress to propose amendments, and of 
their subsequent ratification by three fourths of the States, 
gives no countenance to the principles of the Dorr men, be- 
cause the people have chosen so to limit themselves. All 



Dorr Rebellion 141 

qualifications which persons are required to possess before 
they can be elected are, in fact, limitations upon the power of 
the electors; and so are rules recjuiring them to vote only at 
particular times and places. Our American mode of govern- 
ment does not draw any power from tumultuous assemblages. 
If anything is established in that way, it is deceptive. It is 
true that at the Revolution governments were forcibly de- 
stroyed. But what did the people then do ? They got to- 
gether and took the necessary steps to frame new governments, 
as they did in England when James the Second abdicated. 
William asked Parliament to assemble and provide for the case. 
It was a revolution, not because there was a change in the per- 
son of the sovereign, but because there was a hiatus which 
must be filled. It has been said by the opposing counsel, that 
the people can get together, call themselves so many thou- 
sands, and establish whatever government they please. But 
others must have the same right. We have then a stormy 
South American liberty, supported by arms to-day and crushed 
by arms to-morrow. Our theory places a beautiful face on 
liberty, and makes it powerful for good, producing no tumults. 
When it is necessary to ascertain the will of the people, the 
legislature must provide the means of ascertaining it. The 
Constitution of the United States was established in this way. 
It was recommended to the States to send delegates to a con- 
vention. They did so. Then it was recommended that the 
States should ascertain the will of the people. Nobody sug- 
gested any other mode." 

A curious reference to this case, and to Mr. 
Webster's practice in the Supreme Court, is to be 
found in a letter to his son, dated Washington, 
January 29, 1848 ^ : 

" Neither the Senate nor the court sit to-day; so I am at 
home all day, preparing for a long cause from Mississippi, 

^Private Correspondence, vol. ii., p. 267. His argument was made the 
day before. 



142 Daniel Webster 

which comes on for argument on Monday morning. I be- 
lieve we have pretty effectually suppressed the Rhode Island 
insurrection. 

"It so happens that I have a great deal more to do in court 
this year than at any time since I went into the Department of 
State. The work is hard, not so much in the preparation of 
causes, as in sitting and taking notes of arguments for seven or 
eight days, as sometimes happens. I do not see that I shall 
be able to be out of Court much for a month to come. 

" I attend to causes pretty closely, although, now that I am 
sixty-six years old, I take it for granted that people begin to 
say, ' He is not the man he was.' In some respects it is cer- 
tainly true, perhaps in many." 

It should be noted that the Dorr rebellion, with 
its unsuccessful military attempt, in May, 1842, to 
get possession of the State Arsenal, did lead, in the 
following year, to the making of a new constitution 
in the manner authorized by law. This relieved 
much of the inequality and injustice of the old 
charter. This new constitution was framed by a 
convention called by the charter government and 
ratified by the people. All of which happened be- 
fore the argument and decision of the Supreme 
Court. Such is "the law's delay." The truth is 
that, under our system of jurisprudence, the deci- 
sion of important cases is vastly more important 
to the public than to the litigants. There is some 
excuse, therefore, for the deliberation with which 
they are commonly brought to a final hearing in 
the courts of last resort. This is eminently true 
of the case under consideration. The rules estab- 
lished in it are often invoked, and make continually 
for order and obedience to law. 



CHAPTER XVII 

STATE POWER OVER FOREIGN COMMERCE PASSEN- 
GER TAX CASES 

At a later period in his life, and when that sun 
was drawing near the horizon, which was at meri- 
dian when Gibbons and Ogden was argued, Mr. 
Webster, with equal force of logic and power of 
conviction, vindicated the right of our foreign com- 
merce to be free from the exactions of the several 
States. The Passenger Tax cases, as they are 
called, were appeals from judgments sustaining the 
power of the States to impose taxes upon immigra- 
tion. Massachusetts and New York had enacted 
statutes levying a tax upon every immigrant com- 
ing into their ports. The amount was not great, — 
neither was the tax on tea. But the importance of 
the principle was supreme. One main object in 
the formation of our government was that com- 
mercial intercourse between this country and foreign 
countries should be open alike to all, and that no 
citizen or State should directly or indirectly ac- 
quire a monopoly of it. 

The position of the controversy in these cases 
was this : 

In New York vs. Miln, the Supreme Court had 
held that it was competent for a State Legislature, 

143 



144 Daniel Webster 

in the absence of Congressional legislation on the 
subject, to require each master of a vessel, arriving 
in a port of the United States, to make to the local 
authorities of the State a report giving the names 
of the passengers on board, with sundry particulars 
concerning them. Mr. Justice Story dissented from 
the decision, and stated that Chief Justice Marshall, 
who had died since the appeal was first argued, 
concurred in this dissent.^ 

After this. New York and Massachusetts claimed 
that this decision of the court permitted the several 
States to regulate the entrance of passengers into 
their respective ports, until Congress should pro- 
vide to the contrary. Accordingly, they imposed 
a tax upon each foreigner entering the United 
States, and applied the proceeds of the taxes thus 
levied to the maintenance of their immigration 
offices. 

The shipowners contested the validity of these 
laws. The New York appeal ^ was argued by Mr. 
Webster at the December term, 1845, and again at 
the December term, 1847. He argued the Massa- 
chusetts case^ at the December term, 1846, and 
again in December, 1 848. These re-arguments were 
required by the diversity of opinion that developed 
among the judges. The constitutional law of the 
country was still in process of formation. Only 
two judges, McLean of Ohio and Wayne of 
Georgia, were left of those who sat with Marshall. 

' II Peters, i6i. 

' Smith vs. Turner, Health Commissioner of the Port of New York. 

* Norris vs. The City of Boston. 



State Power over Foreign Commerce 145 

Jackson and Van Buren had placed some strict con- 
structionists upon the bench. It was well that the 
commanding genius of Webster remained, to main- 
tain the principles of construction which he and 
Marshall had united to establish. Taney, who had 
been chosen by Jackson as his Attorney-General, 
and was appointed by him Chief Justice, when 
Marshall died, led the new school that was aiming 
to limit and explain away the long series of de- 
cisions to which we have already called attention. 
He maintained that the power to regulate com- 
merce remained in the States, and could be exer- 
cised until Congress should intervene, and that 
passenger travel was not commerce, but that this 
word in the Constitution applied only to traffic in 
goods. 

The only part of Webster's argument that is pre- 
served in the reports of Mr. Howard is the brief 
statement of points then required by the rules of 
the Court, which is as follows : 

" Norris v. City of Boston.' 

" On the part of the plaintiff in error it will be contended: 

" I. That the act in question is a regulation of commerce of 
the strictest and most important class, and that Congress pos- 
sesses the exclusive power of making such a regulation. 

"And hereunder will be cited ii Pet. 102; 4 Wash. C. C. 
379; 3 How. 212; 14 Pet. 541; 4 Met. 285; 2 Pet. 245; 9 
Wheat, i; 12 Wheat. 436; Federalist, No. 42; 3 Cow. 473; i 
Kent, 5th ed. ; 2 Story's Com. on Const. 506; 15 Pet. 506; 3 
N. H. 499. 

" 2. That the act is an impost or duty on imports, and so 
expressly prohibited by the Constitution, or is in fraud of that 
prohibition. 

■ 7 Howard, 288, 289. 



146 Daniel Webster 

" And hereunder will be cited 4 Met. 285; 12 Wheat. 436; 
Dig. Lib. I, tit. 3, De Leg. et Senat. Cons. Sect. 29; 3 Cow, 
738; 14 Pet. 570. 

"3. That it is repugnant to the actual regulations and 
legally manifested will of Congress. 9 Wheat. 210; 4 Met. 
295; II Pet, 137; 12 Wheat, 446; 5 Wheat. 22; 6 Pet, 515; 
15 Pet. 509; 14 Pet. 576; Laws U, S. 1799, c 128, Sec. 46; 
I Story's Laws, 612, 1819, c, 170; 3 Story's Laws, 1722, 
Laws of Naturalization, 1802, c, 28; 1816, c. 32; 1824, c, 186, 

" D, Webster, 
"R, Choate," 

There is also a brief newspaper account of 
the argument, reprinted in the last edition of his 
Works} 

In a letter written to Mr, Blatchford from Wash- 
ington, on Saturday, the third of February, 1849, 
Mr, Webster thus speaks of the cases and his 
share in them ^ : 

" There is great interest here to hear the opinions of the 
judges on Tuesday. I wish you could be here. Several 
opinions will be read, drawn with the best abilities of the 
writers. In my poor judgment, the decision will be more im- 
portant to the country than any decision since that in the 
steamboat cause. That was one of my earliest arguments of a 
constitutional question. This will probably be, and I am 
content it should be, the last. I am willing to confess to the 
vanity of thinking that my efforts in these two cases have done 
something toward explaining and upholding the just powers of 
the Government of the United States on the great subject of 
commerce. The last, though by far the most laborious and 
persevering, has been made under great discouragements and 
evil auspices. Whatever I may think of the ability of my 

' Webster's Writings and Speeches, vol. xv. , p. 402. 
' Curtis's Life of Webster, vol. ii., p. 373, 



State Power over Foreign Commerce 147 

argument, and I do not think highly of it, I yet feel pleasure 
in reflecting that I have held on and held out to the end." 

A majority of the Court, Justices McLean (Ohio), 
Wayne (Georgia), Catron (Tennessee), Grier(Penn- 
sylvania) and McKinley (Alabama), concurred in 
holding that the transportation of passengers was 
commerce, and that the acts in question were both 
unconstitutional. 

The Chief Justice (Maryland), and Justices Nel- 
son (New York), Daniels (Virginia) and Woodbury 
(New Hampshire) dissented. Daniels was the strict- 
est of strict constructionists. Calhoun must have 
felt that this Virginia judge was as strenuous as 
himself. They maintained that the acts in question 
were a valid exercise of the police power and also 
of the power of taxation, both of which, they said, 
remained in the States, unimpaired by the Consti- 
tution of the United States, except where it con- 
tained a specific prohibition. In opposition to this 
the Court held, as stated by Mr. Justice Wayne ^: 

" I. That the acts of New York and Massachusetts impos- 
ing a tax upon passengers, either foreigners or citizens, com- 
ing into the ports in those States, either in foreign vessels or 
vessels of the United States, from foreign nations or from 
ports in the United States, are unconstitutional and void, be- 
ing in their nature regulations of commerce contrary to the 
grant in the constitution to congress of the power to regulate 
commerce with foreign nations and among the several States. 

" 2. That the States of this Union cannot constitutionally 
tax the commerce of the United States for the purpose of pay- 
ing any expense incident to the execution of their police laws; 

' 7 Howard, 283, 412. 



148 Daniel Webster 

and that the commerce of the United States includes an inter- 
course of persons, as well as the importation of merchandise. 

" 3. That the acts of Massachusetts and New York in ques- 
tion in these cases conflict with treaty stipulations existing be- 
tween the United States and Great Britain, permitting the 
inhabitants of the two countries ' freely and securely to come, 
with their ships and cargoes, to all places, ports, and rivers in 
the territories of each country to which other foreigners are 
permitted to come, to enter into the same, and to remain and 
reside in any parts of said territories, respectively; also, to 
hire and occupy houses and warehouses for the purposes of 
their commerce, and generally the merchants and traders of 
each nation respectively shall enjoy the most complete pro- 
tection and security for their commerce, but subject always to 
the laws and statutes of the two countries respectively ' ; and 
that said laws are therefore unconstitutional and void. 

" 4. That the congress of the United States having by sun- 
dry acts, passed at different times, admitted foreigners into the 
United States with their personal luggage and tools of trade, 
free from all duty or imposts, the acts of Massachusetts and 
New York, imposing any tax upon foreigners or immigrants 
for any purpose whatever, whilst the vessel is in transitu to her 
port of destination, though said vessel may have arrived within 
the jurisdictional limits of either of the States of Massachu- 
setts and New York, and before the passengers have been 
landed, are in violation of said acts of congress, and therefore 
unconstitutional and void. 

"5. That the acts of Massachusetts and New York, so far 
as they impose any obligation upon the owners or consignees 
of vessels, or upon the captains of vessels or freighters of the 
same, arriving in the ports of the United States within the said 
States, to pay any tax or duty of any kind whatever, or to be 
in any way responsible for the same, for passengers arriving in 
the United States, or coming from a port in the United States? 
are unconstitutional and void, being contrary to the constitu- 
tional grant to congress of the power to regulate commerce 
with foreign nations and among the several States, and to the 
legislation of congress under the said power, by which the 



State Power over Foreign Commerce 149 

United States have been laid off into collection districts, and 
ports of entry established within the same, and commercial 
regulations prescribed, under which vessels, their cargoes and 
passengers, are to be admitted into the ports of the United 
States, as well from abroad as from other ports of the United 
States. That the act of New York now in question, so far as 
it imposes a tax upon passengers arriving in vessels from other 
ports in the United States, is properly in this case before this 
court for construction, and that the said tax is unconstitutional 
and void. That the 9th section of the ist article of the con- 
stitution includes within it the migration of other persons, as 
well as the importation of slaves, and in terms recognizes that 
other persons, as well as slaves, may be the subjects of im- 
portation and commerce. 

" 6. That the 5th clause of the 9th section of the ist article 
of the constitution, which declares that ' no preference shall be 
given by any regulation of commerce or revenue to the ports 
of one State over those of another State; nor shall vessels 
bound to or from one State, be obliged to enter, clear, or pay 
duties in another,' is a limitation upon the power of congress 
to regulate commerce for the purpose of producing entire 
commercial equality within the United States, and also a pro- 
hibition upon the States to destroy such equality by any legis- 
lation prescribing a condition upon which vessels bound from 
one State, shall enter the ports of another State. 

"7. That the acts of Massachusetts and New York, so far 
as they impose a tax upon passengers, are unconstitutional 
and void, because each of them so far conflicts with the ist 
clause of the 8th section of the ist article of the constitution, 
which enjoins that all duties, imposts, and excises shall be 
uniform throughout the United States; because the constitu- 
tional uniformity enjoined in respect to duties and imposts is 
as real and obligatory upon the States, in the absence of all 
legislation by congress, as if the uniformity had been made by 
the legislation of congress; and that such constitutional uni- 
formity is interfered with and destroyed by any State imposing 
any tax upon the intercourse of persons from State to State, 
or from foreign countries to the United States. 



I50 Daniel Webster 

" 8, That the power in congress to regulate commerce with 
foreign nations and among the several States, includes naviga- 
tion upon the high seas, and in the bays, harbors, lakes, and 
navigable waters within the United States, and that any tax by 
a State in any way affecting the right of navigation, or sub- 
jecting the exercise of the right to a condition is contrary to 
the aforesaid grant. 

" 9. That the States of this Union may, in the exercise of 
their police powers, pass quarantine and health laws, interdict- 
ing vessels coming from foreign ports, or ports within the 
United States, from landing passengers and goods, prescribe 
the places and time for vessels to quarantine, and impose 
penalties upon persons for violating the same; and that such 
laws, though affecting commerce in its transit, are not regula- 
tions of commerce prescribing terms upon which merchandise 
and persons shall be admitted into the ports of the United 
States, but precautionary regulations to prevent vessels en- 
gaged in commerce from introducing disease into the ports to 
which they are bound; and that the States may, in the exercise 
of such police power, without any violation of the power in 
congress to regulate commerce, exact from the owner or con- 
signee of a quarantined vessel, and from the passengers on 
board of her, such fees as will pay to the State the cost of their 
detention and of the purification of the vessel, cargo, and 
apparel of the persons on board." 

After this decision, the New York lawyers en- 
deavored to find, and did suggest, what was cer- 
tainly a very ingenious device for the purpose of 
evading the force of the decision. An act was 
passed, requiring every captain to report to the 
mayor the name, last residence and occupation of 
every alien passenger. It directed the mayor to 
require the owner or consignee of the ship to give 
a bond with sureties in a penalty of $300 — to in- 
demnify the State against any such person becoming 



State Power over Foreign Commerce 151 

a public charge. From this onerous requirement, 
the owner could be relieved by paying a dollar and 
a half for each passenger, within twenty-four hours 
after he landed. 

The shipowners submitted to this system for 
twenty years. They then decided to contest it. 
In 1875, in the case of Henderson against the 
Mayor of New York,^ it was unanimously held that 
the transportation of passengers was as much a part 
of commerce as that of goods ; that a tax upon pas- 
sengers was a tax on commerce, and that the Court 
would look through the device by which the city 
apparently only required a report and security 
against pauperism. "In whatever language," said 
Mr. Justice Miller, "a statute may be framed, its 
purpose must be determined by its natural and rea- 
sonable effect." And the Court concludes (p. 
274) : 

" We are of opinion that this whole subject has been con- 
fided to Congress by the Constitution; that Congress can more 
appropriately and with more acceptance exercise it than any 
other body known to our law, state or national; that by pro- 
viding a system of laws in these matters, applicable to all ports 
and to all vessels, a serious question, which has long been 
matter of contest and complaint, may be effectually and satis- 
factorily settled." 

Congress adopted the suggestion, and in 1882 
passed an act ^ to regulate immigration. This 
levied a tax of fifty cents upon each alien passen- 
ger who should enter any United States port by 
steam or sail vessel. The proceeds of this tax 

• 92 United States Rep., 259. * 22 U. S. Stat, at Large, 214. 



152 Daniel Webster 

constitute an immigrant fund, which is used to de- 
fray the expense of regulating immigration, and for 
the care of immigrants and the relief of such as 
are in distress. This act was held constitutional 
in the Head money cases, decided in 1884/ Thus 
the question was finally set at rest. Uniformity 
in the administration of immigration throughout 
our ocean frontier has been found to be of great 
public advantage. It is the natural development 
of the principle of national control over national 
commerce, for which Mr. Webster contended in 
Gibbons vs. Ogden, as well as in the Passenger Tax 
cases. Without it, we should not be a Nation. 
It is interesting to trace the gradual extinction of 
the doubts on this subject, which had been raised 
by acute and vigorous advocates of the rights of 
the States. Chief Justice Taney had maintained^ 
that passengers were not imports, that the word 
"imports" in the Constitution, must be given a 
meaning, restricted to its common use, at the time 
the Constitution was adopted, and that therefore 
Cono-ress could not, and the several States could 
impose a tax upon passengers. He adds : 

" And if it is to be hereafter the law of this Court, that the 
power to regulate commerce has abridged the taxing power 
of the States upon the vehicles or instruments of commerce, I 
cannot foresee to jvhat it may lead; whether the same prohibi- 
tion, upon the same principle, may not be carried out in re- 
spect to ship owners and merchandise in a way seriously to 
impair the powers of taxation, which have heretofore been 
exercised by the States." 

' 112 U. S., 5S0. ' 7 Howard, 477-482. 



State Power over Foreign Commerce 153 

But the vague evils, the extent of which the 
Chief Justice could not foresee, have proved to be 
imaginary. In one of the later cases,^ in which 
another attempt of the State of New York to levy 
a tax on commerce under guise of a harbor regula- 
tion was frustrated, Mr. Justice Swayne well ex- 
presses the result of our national experience : 

" The commerce clauses of the Constitution had their origin 
in a wise and salutary policy. They give to Congress the en- 
tire control of the foreign and interstate commerce of the 
country. They were intended to secure harmony and uni- 
formity in the regulations by which they should be governed. 
Wherever such commerce goes, the power of the nation ac- 
companies it, ready and competent, as far as possible, to pro- 
mote its prosperity and redress the wrongs and evils to which 
it may be subjected. It was deemed especially important that 
the States should not impose tonnage taxes. Hence the pro- 
hibition in the Constitution, without the assent of Congress 
previously given. The confusion and mischiefs that would 
ensue if this restriction were removed are too obvious to re- 
quire comment. The lesson upon the subject taught by the 
law before us is an impressive one." 

■ Inman S. S. Co. vs. Tinker, 94 U. S., 238, 245, 



CHAPTER XVIII 

EXTENSIVE RANGE OF WEBSTER's LEGAL ACQUIRE- 
MENTS VAN RENSSELAER TITLE — VAN 

RENSSELAER VS. KEARNEY 

The last case argued by Mr. Webster in the 
Supreme Court was Van Rensselaer vs. Kearney/ 
It was argued by him February ii, 1851. It is 
noted here because it illustrates what has been 
already referred to — the extent of Webster's legal 
acquirements, and the thoroughness with which he 
did his work. 

The case involved the title to the great Van 
Rensselaer estate in New York. In 1782, John 
Van Rensselaer made a will by which he entailed 
the whole manor, comprising 34,000 acres, to the 
oldest son of his grandson, and his male descend- 
ants, or failing them, to the male descendants of 
his other sons. The Legislature of New York, in 
1782, and again in 1786, enacted statutes by which 
entailed estates were converted into an absolute 
fee. This grandson, John J. Van Rensselaer, 
claimed that this law gave him an absolute title, 
and proceeded to make sales of the estate. Sub- 
sequently, however, it was held that he and his pro- 

' II Howard, 297. 
154 



Extensive Range Legal Acquirements 155 

fessional advisers were mistaken in supposing that 
the statute vested the absolute title in him, and 
that he had only a life estate. His oldest son died 
before his father, leaving no children, and the 
second son, Jeremiah, claimed that it was in him 
that the absolute title vested, and brought an 
action of ejectment against the grantees of his 
father. His first suit in the Supreme Court of 
New York was decided against him, and he ac- 
quired citizenship in New Jersey, and brought an 
action in the Circuit Court of the United States, 
in a different form, for the purpose of raising the 
question of title before the United States Supreme 
Court. That Court followed the New York de- 
cisions upon the title, and held that the absolute 
title vested in the grandson when his oldest son 
died, and that this title thereupon passed to the 
previous grantees, and that the other heirs of the 
grandson could not claim it. 

The late John Jay was in this case. When Mr. 
Webster began his argument and proceeded to 
state the differences between the case as presented 
to the Supreme Court, and the former case in New 
York, Mr. Jay thought the statement erroneous 
and asked Mr. Wood, the senior counsel (who was 
one of the leaders of the New York bar), to correct 
him. Mr. Wood replied: "I do not know any 
man who would venture to interrupt Mr. Web- 
ster." Mr. Jay said, "I will," and he did.^ Webster 

' The author's authority for this statement is Mr. Jay himself. He 
seemed to be as proud of this success of his youth as of any achievement of 
his long and useful life. 

Mr. Webster's notes of his argument in this case are in the Library of 



156 Daniel Webster 

frowned at his young opponent, but the latter held 
to his point and, as he was right, carried it, to the 
great surprise of the Court and bar. 

the New Hampshire Historical Society. They are detailed and thorough, 
written in the neat and compact hand which characterizes his notes and 
briefs, and on the square letter paper with which practitioners in the Su- 
preme Court are familiar. 



CHAPTER XIX 

THE CONSTITUTION AND SLAVERY SEVENTH OF 

MARCH SPEECH 

Mr. Webster's position on the seventh of March, 
1850, was unique. To no man in America did the 
country look with such confidence. The story of 
his great arguments, which has just been rehearsed, 
was fresh in every breast. The Senate Chamber 
was thronged to hear him. But his audience was 
in every one of the thirty States then composing 
the Union. The difficulties of the situation seemed 
insurmountable, and it was generally felt that he was 
the Lewis and Clark who could find a practicable 
pass through these Rocky Mountains. Clay, the 
compromiser, was engaged in the preparation of 
compromise measures. But men looked to Web- 
ster to convince the judgment and the conscience 
of the country. 

In the nature of the case, it was impossible that 
he should satisfy every one. Gabriel himself could 
not have done that. 

Any one who reads carefully the contemporary 
literature, as, for example, Emerson's lecture on 
the Fugitive Slave Law,^ will perceive that the real 

' Delivered March 7, 1854. 
157 



158 Daniel Webster 

difference between Webster and his critics was this. 
They beheved that slavery, everywhere and under 
all circumstances, was wrong, and that therefore 
any stipulation in its favor in the Constitution was 
void. He thought it an evil, he opposed its exten- 
sion, he hoped for its termination, but he did not 
think that at all times and under all circumstances 
it was morally wrong. Therefore he judged that 
it was right to recognize the existence of slavery, 
and to submit to the agreement which bound the 
federal government to tolerate that existence in 
the Southern States. His position was analogous 
to that of James Russell Lowell in the winter of 
1876-77. There can be little doubt that Lowell's 
conscience revolted against the proceedings of the 
Returning Boards in Louisiana and Florida, which 
suppressed and altered returns from various dis- 
tricts, and thereby converted a popular majority for 
Tilden into an electoral majority for Hayes. The 
Electoral Commission held that it had no power to 
inquire into the Democratic allegations of fraud in 
the proceedings of these Returning Boards. Under 
these circumstances, some of Mr. Lowell's friends 
urged upon him that, in his position as Elector 
from the State of Massachusetts, it was his duty to 
redress the fraud thus committed, and to deprive 
those who had committed it of the fruit of their 
conduct, by voting in the Electoral College for 
Tilden. This would have given Tilden a majority 
in that College. But Lowell, in opposition to this 
solicitation, declared that he was commissioned by 
the State of Massachusetts to vote for Hayes. It 



The Constitution and Slavery 159 

could not be denied that he had constitutionally 
the right to vote differently. But he did not feel 
at liberty to disregard the mandate which unbroken 
custom had given to the members of the Electoral 
College. In short, while he saw the wrong, he did 
not feel called upon to redress it, although he had 
the clear constitutional right so to do. 

Mr. Webster, with equal clearness, saw the 
wrong of slavery. But his case was stronger than 
Lowell's, for as Senator from the State of Massa- 
chusetts, he had no constitutional right to interfere 
with slavery in the Southern States, and he felt it 
his duty to convince his countrymen, if possible, 
that the observance of the obligations which they 
had assumed when they adopted the Federal Con- 
stitution was consistent with good conscience. But 
it was natural that those who did not ao^ree with 
him in this should condemn his course. It was a 
distinct disappointment to them. And it is not 
surprising that those who were disappointed should 
have expressed that disappointment in bitter words. 
Some of them, like Whittier and Lowell, were men 
of extraordinary literary gifts, and embalmed their 
indignant thoughts in the clear amber of their 
style. Then came the war, and the epoch of re- 
construction, warped and embittered by the tragi- 
cal death of our great Captain, just as his ship was 
entering port after the stormy four years of his 
first Administration. It was then too soon to 
judge fairly of Webster's position in 1850. But 
the experience of the last thirty years has not been 
in vain. We have learned that the earnest men 



i6o Daniel Webster 

were mistaken who thought the solution of the 
negro question easy — who declared, as the author 
heard Roswell D. Hitchcock say — "Do you ask 
what is to become of the negroes ? I answer — 
What is to become of the red-headed men ? " 

Webster vividly described the situation in 1850 
in this very speech ^ : 

"It is not to be denied that we live in the midst of strong 
agitations, and are surrounded by very considerable dangers 
to our institutions and government. The imprisoned winds 
are let loose. The East, the North, and the stormy South 
combine to throw the whole sea into commotion, to toss its 
billows to the skies, and to disclose its profoundest depths." 

The nature of this commotion can best be appre- 
ciated by a brief reference to the character of the 
conflicting elements. 

The Northern abolitionists imagined that the 
Southern negroes had reached the full standard of 
manhood, and were capable of self-government. To 
them the Southern whites were cruel oppressors. 
No one did more to impress these ideas upon the 
last generation than James Russell Lowell. The 
indignation which others vehemently but coarsely 
uttered, he expressed with the skill and fire of 
genius. Uncle Toins Cabin, too, was read through- 
out the world, and was regarded by many as a true 
picture of the South, as a whole. 

On the farther side of Mason and Dixon's line, 
the Southern people smarted under and resented 
these attacks, which they knew to be, in the main, 
unjust. They were well aware that, while there 

' Webster's Works, vol. v., p. 325. 



The Constitution and Slavery i6i 

were many individual exceptions, the negroes as a 
race were backward in development, childish in 
taste and feeling, incapable of the proper exercise 
of the duties of citizenship. 

In the light of our experience since the war, we 
ought to revise the traditional opinions as to its 
causes. The great discovery of Darwin — the law 
of evolution — was not understood before the war. 
The Northern abolitionists did not realize that the 
negroes who had been brought from Africa had 
existed in their native country in a state of the 
lowest barbarism, not far removed from the ape, 
and that what Wordsworth calls the '* discipline 
of slavery " was a stage in the evolution of the race. 
" Hateful though it is to us," says Herbert Spen- 
cer, ^ '* and injurious as it would be now, slavery 
was once beneficial, was one of the necessary 
phases of human progress." 

On the other hand, the Southern people did not 
know, or failed to realize, that slavery was only a 
transitory stage, and that it was the part of wise 
statesmanship to train these blacks for something 
better than slavery. So they did their utmost to 
keep their slaves just as they were, and discouraged 
or prohibited education of every sort, except that 
actually necessary for the daily work of the town 
or of the plantation. And with unspeakable folly, 
under the leadership of Calhoun, they claimed, as 
has been shown,^ that the Constitution itself carried 

' Herbert Spencer, Illustrations of Universal Progress, p. 444 (Ed. D. 
Appleton & Co., 1890). See also Shaler, 7'^^ Individual, p. 135. 
^Ante, pp. 74, 75. 



i62 Daniel Webster 

slavery into the Territories, and they were constantly 
aiming to extend its area, not merely by this pro- 
cess of colonization, but by the acquisition of new 
territory, adapted for the cultivation of cotton by 
slave labor. To this end Texas had been annexed. 
This led to the war with Mexico. That resulted 
in the annexation of California and New Mexico. 
And now California stood at the doors of Congress, 
askinor for admission as a State with a constitution 
that prohibited slavery. New Mexico needed a 
territorial government. Should Congress prohibit 
slavery there ? And the District of Columbia, over 
which Congress had exclusive jurisdiction — Should 
slavery be prohibited there? Should the sale of 
slaves be longer tolerated at the national Capital ? 
And what was to be done with fugitives who es- 
caped from slavery to the North ? The Constitu- 
tion contained an agreement that they should be 
returned. For this reason Garrison called it a 
"covenant with hell." And when United States 
soldiers in Boston were ordered out to protect the 
United States marshal in executing the process of 
the federal court for the return of a fugitive, the 
flag under which they marched was greeted with 
the following verse, which seems shocking to us 
to-day, after that flag has been consecrated by un- 
told blood and suffering, but which then expressed 
the sentiments of thousands of sincere lovers of 

liberty. 

" Tear down the flaunting lie, 
Half-mast the starry flag, 
Defile not sea and sky 

With hate's polluted rag." 



The Constitution and Slavery i6 



So it came to pass that both abolitionists and pro- 
slavery men were for disunion. 

Mr. Webster saw clearly to what this conflict 
would lead, unless wiser counsels could prevail. 
An incident which the author is enabled to relate 
on the word of an eye-witness tells the story faith- 
fully. One day at Marshfield, in 1849, he was 
oppressed by sadness. Usually cheerful and full 
of varied anecdote, he was silent. After dinner he 
stood in front of the fire and said in his deep tones : 
" If this slavery agitation goes on, we shall have 
war between the North and South. And who is 
ready for that ? " 

To prevent that, he delivered this great address, 
which is not the least of his titles to the gratitude 
of his countrymen. If the War of Secession had 
come in 1850, the South would probably have suc- 
ceeded. The increase of the Northern States in 
population during the succeeding decade was far 
greater than that of the Southern States. But 
more important than this was the rapid develop- 
ment of railroads and telegraphs, and of innu- 
merable manufacturinor industries. The mines of 
California enriched us as well as those of Pennsyl- 
vania and Michigan. Together they upheld the 
war by " its two main nerves, iron and gold." 

If secession therefore was to come, anything that 
should postpone its advent was of vital importance 
to the Union. This speech of Webster's was the 
most important factor in producing that result. 
And had Douglas and his supporters in the 
North, and Davis and his associates in the South, 



164 Daniel Webster 

acquiesced in the compromise which followed, we 
might have been spared the blood and suffering of 
the Civil War, and emancipated our slaves peace- 
ably and gradually, as the British did in 1833, with 
compensation to the Southern States. Let no man, 
therefore, now attribute to our great statesman 
ignoble motives for this, his final great effort " for 
the Constitution and the Union." 

Webster is now justly entitled to full belief when 
he himself declared in this memorable speech his 
purposes and motives. He said : 

" I wish to speak to-day, not as a Massachusetts man, nor 
as a Northern man, but as an American, and a member of the 
Senate of the United States.' ... I have a part to act, 
not for my own security or safety, for I am looking out for no 
fragment upon which to float away from the wreck, if wreck 
there must be, but for the good of the whole, and the preserva- 
tion of all; and there is that which will keep me to my duty 
during this struggle, whether the sun and stars shall appear, 
or shall not appear for many days. I speak to-day for the 
preservation of the Union. ' Hear me for my cause.' I speak 
to-day, out of a solicitous and anxious heart, for the restora- 
tion to the country of that quiet and that harmony which make 
the blessings of this Union so rich and so dear to us all. 
These are the topics that I propose to myself to discuss; these 
are the motives, and the sole motives, that influence me in the 
wish to communicate my opinions to the Senate and the coun- 
try; and if I can do anything, however little, for the promotion 
of these ends, I shall have accomplished all that I expect. ' ' ' 

It must be noted here that only three days before 
Webster spoke, Calhoun's last important speech 

' It must be remembered that there were then in the Senate the first law- 
yers and statesmen in the United States. 

* Blaine frankly concedes Webster's sincerity and patriotism in this speech. 
Twenty Years in Congress, vol. i., p. 94. 



The Constitution and Slavery 165 

was heard in the Senate. He was too feeble to 
deliver it, and it was read by Mr. Mason of Vir- 
ginia.^ A brief extract from this will illustrate 
the position of Calhoun and his associates at this 
time : 

"That the Government claims, and practically maintains, 
the right to decide in the last resort, as to the extent of its 
powers will hardly be denied by any one conversant with the 
political history of the country. That it also claims the right 
to resort to force, to maintain whatever power she claims, 
against all opposition, is equally certain. Indeed it is appar- 
ent, from what we daily hear, that this has become the prevail- 
ing and fixed opinion of a great majority of the community." ^ 

Calhoun then went on to show how the great 
religious bodies had been broken asunder by the 
slavery discussion. 

He attacked the doctrine of the right of a Terri- 
tory to legislate on the subject as worse than the 
Wilmot proviso. It seems that Senator Houston 
of Texas had favored this local legislation. 

He puts the case thus to the Senate : 

"It is time, Senators, that there should be an open and manly 
avowal on all sides as to what is intended to be done. If the 
question is not now settled, it is uncertain whether it ever can 
hereafter be; and we, as the representatives of the States of this 
Union, regarded as Governments, should come to a distinct 
understanding as to our respective views, in order to ascertain 
whether the great questions at issue can be settled or not. If 
you, who represent the stronger portion, cannot agree to settle 
them on the broad principle of justice and duty, say so, and 

' Calhoun died in Washington on the 31st of March, 1850. 
" Page 6 of a pamphlet copy of this speech, among the Webster papers in 
the Library of the N. H. Historical Society. 



1 66 Daniel Webster 

let the States we both represent, agree to separate and part in 
peace. If you are unwilling we should part in peace, tell us 
so, and we shall know what to do, when you reduce the ques- 
tion to submission or resistance." ' 

The principal propositions which Webster main- 
tained in his reply to this speech of Calhoun's were 
these : 

1. That at the time the Constitution was adopted, 
slavery existed in the United States, but was gen- 
erally looked upon as an evil which would gradually 
pass away. 

2. That public sentiment in the South on this 
subject had changed, and that the change " was 
owing to the rapid growth and sudden extension of 
the COTTON plantations of the South. So far as 
any motive consistent with honor, justice and gen- 
eral judgment could act, it was the cotton interest 
that gave a new desire to promote slavery, to spread 
it, and to use its labor." ^ 

3. That the Constitution found slavery " in the 
Union ; it recognized it, and gave it solemn guar- 
anties. To the full extent of these guaranties we 
are all bound in honor, in justice, and by the 
Constitution." ^ 

4. " That there is not at this moment within the 
United States, or any territory of the United States, 
a single foot of land, the character of which, in re- 

' Page 16 of a pamphlet copy of this speech, among the Webster papers in 
the Library of the N. H. Historical Society. 

^ Webster's Works, vol. v., p. 338. The emphasis on COTTON is given as 
it is in the published speech. 

^ Ibid., vol. v., p. 347. See also his argument in Passenger-Tax cases, 
Writitigs and Speeches, vol. xv., p. 404. 



The Constitution and Slavery 167 

gard to its being free territory or slave territory, is 
not fixed by some law, beyond the power of the 
action of the Government." ^ As to Texas he 
showed that, by the compact for its admission, it 
was entitled to be divided into four States, every 
part of which lying south of "thirty-six degrees 
thirty minutes north latitude, commonly known as 
the Missouri Compromise line, shall be admitted 
into the Union with or without slavery, as the peo- 
ple of each State asking admission may desire." 
North of that line, in any State formed out of 
Texas, slavery was to be prohibited, as it had been 
by the compromise of 1820, in every State to be 
admitted north of that line. As to New Mexico 
(of which the State now called Utah was then a 
part), the mountainous character of the country 
was such that slavery was impossible. " Such a 
prohibition would be idle, as it respects any effect 
it would have upon the territory, and I would not 
take pains uselessly to reaffirm an ordinance of 
nature, nor to re-enact the will of God."^ 

5. That he himself had always opposed the an- 
nexation of Texas, because inevitably it would 
lead to the extension of the area of slavery, but 
that it had been carried by the votes of Northern 
representatives. 

6. That he himself had always, and still opposed 
the extension of the area of slavery. 

7. That the Supreme Court had decided ^ " that 
the power to cause fugitives from service to be 

'Webster's Works, vol. v., p. 340. "^ Ibid., vol. v., p. 352. 

^ Prigg vs. Pennsylvania, 16 Peters, 610. 



1 68 Daniel Webster 

delivered up, was a power to be exercised under the 
authority of this [the national] government," and 
that the oath to support the Constitution bound all 
who took it, at least not " to endeavor to get round 
this Constitution, or to embarrass the free exercise 
of the rights secured by the Constitution to the 
persons whose slaves escape from them." 

8. And then, to conclude in his own words ^ : 

"Secession! Peaceable secession ! Sir, your eyes and mine 
are never destined to see that miracle. The dismemberment 
of this vast country without convulsion! The breaking up of 
the fountains of the great deep without ruffling the surface! 
Who is so foolish, I beg everybody's pardon, as to expect to 
see any such thing ? Sir, he who sees these States, now re- 
volving in harmony around a common centre, and expects to 
see them quit their places and fly off without convulsion, may 
look the next hour to see the heavenly bodies rush from their 
spheres, and jostle against each other in the realms of space, 
without causing the wreck of the universe. There can be no 
such thing as a peaceable secession. Peaceable secession is 
an utter impossibility. Is the great Constitution under which 
we live, covering this whole country, is it to be thawed and 
melted away by secession, as the snows on the mountain melt 
under the influence of a vernal sun, disappear almost unob- 
served, and run off ? No sir! No sir! I will not state what 
might produce the disruption of the Union, but Sir, I see as 
plainly as I see the sun in heaven, what that disruption itself 
must produce. I see that it must produce war, and such a 
war as I will not describe, in its twofold character ""^ 

There were many arguments in the speech 
adapted to produce a more friendly understand- 

' Webster's Works, vol. v., p. 361. 

* A remarkable statement of the duty and right of the national government 
to put down secession by force is in a circular submitted by him to the 
Cabinet when he was Secretary of State, October, 1850 ( Writings and 
Speeches, vol. xv., p. 232). 



The Constitution and Slavery 169 

ing between the North and the South. But the 
eight propositions I have thus stated were the prin- 
cipal topics. It is difificuh now to reaHze the offence 
that their statement gave to many good people at 
the North. Apparently some had expected that 
Mr. Webster would head a crusade against the 
South. For a time the doors of Faneuil Hall 
were closed against him by the Boston Common 
Council, though they afterwards swung wide open 
by the unanimous invitation of the Mayor and 
Council to welcome the first citizen of Massachu- 
setts.^ On the whole, the great majority of the 
Northern and Southern people approved his course.^ 
The speech was circulated by the hundred thou- 
sand. It was entitled, a speech " for the Constitu- 
tion and the Union." " With the highest respect 
and the deepest sense of obligation, I dedicate this 
speech," he said, " to the People of Massachusetts." 
The motto he prefixed to the pamphlet edition 
expresses tersely the spirit of the whole. Its apt- 
ness illustrates his familiarity with the Latin histo- 
rians, whom he discussed sympathetically in his 
address before the New York Historical Society 
on the 23d of February, 1852.^ 

"I know that there are things more pleasing to be spoken, 
but I speak that which is true rather than that which is pleas- 
ing; and even if my judgment did not warn me to do this, 
necessity compels me to do it. I purpose, indeed, to please 

' Webster's Writings and Speeches, vol. xiii., p. 510. 

'On the 30th of April, 1850, a resolution condemning his course was 
rejected in the Massachusetts Legislature by a vote of 77 yeas to 139 nays ; 
see Burgess, The Middle Period, p. 359. 

2 Webster's Writings and Speeches, vol. xiii., p. 463. 



I70 Daniel Webster 

you, but I purpose much more that you should be saved, how- 
ever you may in the future regard me." ' 

Great public meetings were held in various parts 
of the Union to express approbation of the positions 
taken in this speech. Some of the letters of grati- 
tude which Webster received are in print. But 
there are many more in the collections of Webster 
manuscripts. Perhaps none pleased him better 
than the following letter from Francis Lieber, who 
was then Professor in the University at Columbia, 
South Carolina, and who came North before 1861 
and rendered signal service in that war which may 
justly be named — as was the seventh of March 
speech, — "for the Constitution and the Union." 

Columbia S. C. 6 June 1850 
*' My dear Sir 

" I received last night the three pamphlets which you have 
had the kindness of sending to me, and for which I beg you to 
accept my thanks. I had read and read with deep interest, 
your Letter before, but I am glad I now possess that masculine 
and substantial paper in pamphlet form, and feel proud to 
have a copy of it with your name inscribed. Sir, I trust in 
God, that all these papers may not receive an additional and 
most melancholy interest by being looked upon, a few years 
hence, as belonging to the closed period of the once existing 
Union. I confess, I do not believe in an immediate dissolu- 

' This quotation, which Webster prefixed to the widely circulated pamphlet 
edition of this speech, is from the third book of Livy, Cap. 68. It is part 
of a speech of the Consul Titus Quinctius Capitolinus, to the Roman people, 
rebuking them for their dissensions while the ^qui and Volsci were rav- 
aging the Campagna, up to the very gates of Rome : 

" His ego gratiora dictu alia esse scio ; sed me vera pro gratis loqui, etsi 
meum ingenium non moneret. necessitas cogit. Vellem, equidem, vobis pla- 
cere, sed multo male vos salvos esse, qualicumque erga me animo futuri 
estis." 



The Constitution and Slavery 171 

tion of the Union — though everything is possible with reckless 
fanatics, and the power of mischief is incalculable in every 
being, even in the mouse which perforates a dyke — but this 
shaking and rude handling — this, tabefacere, may make our 
Union so rickety a thing that we may suffer nearly all the 
misery and disgrace under which Germany has staggered for 
centuries in consequence of her wretched federal constitution 
and of her ' particularism,' as the body of those tendencies is 
there called, which tears that unhappy country — destined for 
great things but cheated out of her history. I find that I feel 
far deeper upon this subject of the Union than very many of 
the native citizens, perhaps because I am not a native Ameri- 
can, and ther'^fore naturally and necessarily a Pan-American, 
and because I am a native German, who knows by heart the 
commentary which his country has furnished and is furnish- 
ing for the text of querulous, angry, selfseeking, unpatriotic 
confederacies, and who finds in the history of his native coun- 
try the key clearly and plainly to decipher every line of Grecian 
decay. While I am writing these sad lines to you, they may 
be engaged at Nashville in a ' torch-dance ' which — God avert 
it — may end as that which concluded with the end of Persepolis 
and the glory of Alexander — with a conflagration. 

" But all this is very sad; for as the weeping Persian said, 
' the saddest of all things is to see the ruin of your country and 
to see how it ought to be averted, but to have no power.' 

" I am with the highest regard 

" my dear Sir 

" Your very obdt 

" Francis Lieber, 

*' Fan-American " ' 

Just after the receipt of this letter, on the seven- 
teenth of June (which we may remember is Bunker 
Hill Day), in the debate on the admission of Cali- 
fornia, Mr. Webster declared that he had, in 
deference to the critics who had assailed him, re- 

' The original of this letter is in the Congressional Library. 



172 Daniel Webster 

examined his opinions, and rejudged his own judg- 
ments, but that he could not part from his own 
settled opinions, and must " leave consequences to 
themselves." He concluded his five minutes' 
speech with the following patriotic words : 

" Sir, My object is peace. My object is reconciliation. My 
purpose is not to make up a case for the North or to make up 
a case for the South. My object is not to continue useless and 
irritating controversies, I am against agitators North and 
South, and against all narrow and local contests. I am an 
American and I know no locality in America; that is my 
country. My heart, my sentiments, my judgment, demand of 
me that I shall pursue such a course as shall promote the good 
and the harmony and the Union of the whole Country — This 
I shall do, God willing, to the end of the chapter." * 

The legislation which was adopted in 1850 was 
on the lines of the Seventh of March speech : Cali- 
fornia was admitted as a free State. And here we 
must pause to note that this for the first time gave 
the free States a majority in the Senate. It was 
this circumstance that had alarmed Calhoun. For 
thirty years the number of Senators from the slave 
States had equalled that from the free States. 
Massachusetts was divided in 1820, and Maine ad- 
mitted as a separate State, in order to counter- 
balance the admission of Missouri as a slave State. 

To New Mexico and Utah was oriven a terri- 
torial government. Its organic law contained no 
prohibition of slavery. 

A fugitive slave law was passed. Webster in- 
troduced and endeavored in vain to secure the 

'Webster's Works, vol. v., p. 385. 



The Constitution and Slavery 173 

passage of an act giving to the alleged fugitive 
the right of trial by jury.^ This, however, did 
not pass. 

The traffic in slaves in the District of Columbia 
was prohibited. 

In addition to the measures thus briefly stated, 
the compromise included the settlement of the dis- 
pute between the United States and Texas as to 
the boundaries of that State. Texas was paid ten 
million dollars, and she ceded to the United States 
the disputed territory — now a part of Wyoming, 
Colorado, Kansas, Oklahoma and New Mexico. 
The country generally acquiesced in this Com- 
promise of 1850. When, in 1852, General Scott 
was nominated for the Presidency by the dissatisfied 
section of the Whig party, he carried but four 
States, Vermont, Massachusetts, Kentucky, and 
Tennessee. Every other of the thirty-one States 
voted for Franklin Pierce. He had been brought 
forward as " a dark horse," to use a modern phrase, 
because he was known to be a colorless man against 
whom there was no prejudice. He stood on a 
platform pledged to the approval and maintenance 
of the Compromise of 1850. The desire for peace 
was almost universal, and the peace candidate was 
triumphantly elected. 

In an evil hour, Douglas revived the agitation in 
1854. A fundamental element in the Compromise 
of 1850 was that there should be no further exten- 
sion of the area of slavery. When Douglas pro- 
posed that the voters of Kansas and Nebraska 

■ Webster's Works, vol. v., p. 373. 



174 Daniel Webster 

should decide this question for themselves, and in- 
troduced a bill which repealed the prohibition of 
slavery contained in the Missouri Compromise of 
1820, it became plain that this essential considera- 
tion for the Northern concessions was to be repu- 
diated. The fountains of the great deep were 
broken up. War came, and that war gave us ab- 
solute emancipation. 

In that war our great leader was Abraham Lin- 
coln. He in his time received as much abuse from 
extreme men on both sides as did Mr. Webster. 
But his assassination made him a martyr. His- 
tory has told the truth of him. And when a curi- 
ous poll was made of one hundred prominent 
Americans to determine the names that should be 
inscribed on the Hall of Fame of the New York 
University, the three names that obtained their 
unanimous verdict were Washington, Webster and 
Lincoln. Let us therefore compare the positions 
taken in the seventh of March speech, with Mr. 
Lincoln's first inaugural.^ In this the President 
distinctly declares in favor of the maintenance in- 
violate of " the rieht of each State to order and 
control its own domestic institutions according to 
its own judgment exclusively." He declares that 
the Constitution requires " the reclaiming of what 
we call fugitive slaves " and that an oath to support 
the Constitution is an oath to give support " to this 
provision as much as any other." 

When Mr. Lincoln on the 6th of March, 1862, 
sent to Congress his message recommending Con- 

' Lincoln's Works, vol. ii., pp, 1-7. 



The Constitution and Slavery 175 

gress to provide for pecuniary aid to any State 
which should abolish slavery/ he advocated the 
true policy, which it would have been wise for both 
North and South to have adopted. In his message 
of December ist, he renews this recommendation,^ 
describing it as "compensated emancipation." 

And as late as the 5th of February, 1865, Lincoln 
presented to his Cabinet a message to Congress 
offering four hundred million dollars to the fifteen 
slave States (as they were in i860), to be distributed 
pro rata on their respective slave populations, as 
shown by the Census of i860, on condition that 
" all resistance to the National authority shall be 
abandoned and cease on or before the ist of April 
next."-^ 

He recommended this plan, as he had his prior 
plan,* by calling attention to the fact that its cost 
would be much less than the cost of the war. It 
seems strange that this proposition of Mr. Lincoln's, 
so fair, and so frequently renewed, should not have 
been accepted by a single slave State. It seems 
strange that such a solution does not appear to 
have occurred to any of the great men, who in 1850 
were endeavoring to adjust amicably the differences 
between the North and the South. Colonization 
in Africa was proposed. Liberia was founded as a 
nucleus for this movement. In the speech we are 
now considering, Webster declared that if the South 
should propose "a scheme to be carried on by this 
Government, upon a large scale, for the transporta- 

' Lincoln's IVorks, vol. ii., p. 129. "^ Ibid., p. 268. 

^ Ibid., p. 635. ^ Ibid., p. 210. 



176 Daniel Webster 

tion of free colored people to any colony, or any 
place in the world," he would favor the use for this 
purpose of a sum equal to the amount already re- 
ceived by the United States from the proceeds of 
lands ceded by Virginia, amounting then to eighty 
milHon dollars, and likely to reach the sum of two 
hundred millions.^ But the South needed and still 
needs the colored people. Their development as 
a race has progressed and will progress better here 
than in Africa. They were fated to be free here in 
America. And, as the South refused voluntary 
emancipation, it came with fire and sword. Never- 
theless, it did come. The difficulties that the more 
intelligent Southerners foresaw, and which we must 
now admit palliated their refusal, are now upon us. 
They can only be overcome by the exercise of the 
same spirit of moderation, of sympathy, of mutual 
consideration, which characterizes the seventh of 
March speech, and which always has been the most 
odious spirit to zealots on both sides.^ 

'Webster's Works, vol. v., p. 364. 

'' It is a notable fact that in the winter of 1860-61, " with a Republican 
majority in both branches, Acts organizing the Territories of Colorado, 
Dakota and Nevada were passed without containing a word of prohibition 
on the subject of slavery . . . the Republican party took precisely the 
same ground held by Mr. Webster in 1850, and acted from precisely the 
same motives that inspired the 7th of March speech." — Blaine, Twenty 
Years in Congress, vol. i., pp. 269-271. 



CHAPTER XX 

CONCLUSION 

The principles which in the leading cases, sum- 
marized in the foregoing chapters, Webster suc- 
cessfully maintained against the adverse decisions 
of the courts below, underlie our whole American 
system. Mr. Everett tells us that what gave to 
Lafayette his spotless fame was "the living love of 
liberty protected by law." What has given to this 
country its greatness is its well-ordered freedom, 
protected and secured by the Union ; liberty secure, 
union equal. No individual or citizen of one State 
may have privileges secured to him by law superior 
to the privileges of others. On the other hand, 
every citizen is protected by law in the acquisition 
of property and in the enjoyment of his personal 
rights. So long as American courts respect the 
principles thus established, and America combines 
public freedom with individual security, so long 
shall a grateful people cherish the memory of the 
Expounder of the Constitution, the farmer boy of 
Salisbury, the eloquent, farseeing lawgiver and 
lawyer, Daniel Webster. 

He was the one man in American history to 
whom during his lifetime the epithet of godlike 
was applied. It did not, in his case, arouse any 

12 



178 Daniel Webster 

feeling of surprise. His character, his features and 
his form alike justified its application. 

Whittier aptly describes his personal appearance : 

/ " New England's stateliest type of man, 
In port and speech Olympian: 
Whom the rich heavens did so endow 
With eyes of power and Jove's own brow, 

■ Whom no one met, at first, but took 

A second awed and wondering look! " 

Ball's Statue in the New York Central Park gives 
us Webster's shape and figure. But, unfortunately, 
the artist had not the genius of St. Gaudens, whose 
Lincoln and Farragut seem on the point of speak- 
ing-. It needs imagination to breathe into this 
statue the breath of life. 

Webster's voice both in volume and quality was 
unsurpassed by that of any American orator. Even 
at the age of seventy, when he delivered his ora- 
tion before the Historical Society, his peroration 
rose and swelled and reverberated in perfect har- 
mony through the great hall. The sonorous Greek 
of his quotation from the book of Revelation re- 
sounded as if the angel himself were there, who 
" came down from heaven, having great power, and 
the earth was lightened with his glory." 

All the living force of this personality, the con- 
structive genius of the lawgiver, the learning of the 
lawyer, he put at the service of his country. 

There are some who think that it elevates the 
race to underrate the influence of individuals. It 
has been said that the greatest man is but little in 
advance of his time, and is to the advancing flood 



Conclusion 179 

what the crest of the wave is to the billow below. 
The proposition is pleasing to small minds. Since 
they cannot rise themselves, it flatters their vanity 
to diminish the interval which separates them from 
the leaders of mankind. But the plainest teachings 
of history and the most ordinary facts of everyday 
life must be disregarded in order to maintain this 
ingenious hypothesis. 

The traveller who stands in the Union Station at 
Chicago beholds numerous tracks side by side, all 
apparently leading in the same direction. A man 
at one end of the station moves an iron rod, and 
one train, obedient to the steel ribbons on which it 
rolls, passes away to the East. He moves another, 
and the next train departs for the West ; and so 
they go, parallel at first, but diverging as far as the 
waters of the Atlantic are from the Golden Gate 
of the Pacific. Such is the influence of individuals 
upon nations. The bigotry and cruelty of Philip 
brought the proud Castilian monarchy of Ferdi- 
nand and Isabella to the dust. The weakness and 
selfishness of Charles humiliated and degraded the 
great nation which with Cromwell at its head re- 
ceived the respect and deference of all Europe. The 
same army which was discomfited and driven back 
at Chancellorsville carried the banners of the Repub- 
lic in triumph upon the bloody field of Gettysburg. 

Great men elevate and ennoble their countrymen. 
In the glory of our Webster, we find the glory of 
our whole country. His name and his fame are the 
birthright of every American citizen. 



TABLE OF CASES 



PAGE 

Amedie, The . ...... . , 66 

American Insurance Co. vs. Canter .... 70 

Antelope, The ........ 65 

Atlantic and Pacific Telegraph Co. vs. Philadelphia . 56 

Bank of Augusta vs. Earle ...... 124 

Caldwell vs. North Carolina ...... 56 

Carver vs. Astor's Lessee ...... 76 

Charles River Bridge vs. Warren Bridge . . .121 

Charleston, City Council of, ads. Weston ... 44 

Dartmouth College vs. Woodward .... 16 

De Lima vs. Bidwell ....... 74 

Diamond Glue Co. vs. United States Glue Co. . . 125 

Dooley vs. United States ...... 74 

Downes vs. Bidwell ....... 74 

Fairbanks vs. United States 43 

Fortuna, The ......... 66 

Fourteen Diamond Rings vs. United States ... 74 

Gibbons vs. Ogden 47, 152 

Gonzales vs. Williams ....... 74 

Hanley vs. Kansas City Southern Ry. Co. ... 56 

Hawaii vs. Mankichi ....... 74 

Head Money Cases 152 

Henderson vs. Mayor of New York . . . -151 

Huus vs. New York and Porto Rico Steamship Co. . 74 

Inman S. S. Co. vs. Tinker 153 

La Jeune Eugenie ........ 63 

Le Louis .......... 66 

Lexington, The 129 

Luther vs. Borden 13^ 

Madrazo vs. Willes (id 

181 



I 82 



Table of Cases 



McCuUoch vs. Maryland 

Miller vs. The State 

New Jersey Steam Navigation Co. vs. Merchants Bank 

of Boston 
New Orleans vs. United States 
New York vs. Miln 
Norris vs. City of Boston 
Ogden vs. Saunders 
Passenger Tax Cases ..... 143, 15 
Pawlet, Town of, vs. Clark 
People ex rel. Metropolitan Street Railway Co. vs Tax 

Commissioner . 
People vs. O'Brien 
People z'j. O'Farrell 
Prigg vs. Pennsylvania . 
Rhode Island, State of, vs. Commonwealth of Massa 

chusetts . 
Smith vs. Turner 
Society for Propagation of the Gospel in Foreign Parts 

vs. Town of New Haven 
Society for Propagation of the Gospel in Foreign Parts 

vs. Town of Pawlet 
Sturges vs. Crowninshield 
United States vs. Bevans 
Van Rensselaer vs. Kearney 
Vidal vs. Girard's Executors 
West River Bridge vs. Dix and Towns of Brattleboro 

and Dummerston 
Western Union Telegraph Co. vs. Borough of New 

Hope 

Weston vs. City Council of Charleston 



PAGE 

34 
26 

130 
118 

143 
144 

67 

166 

13 

26 

26 

128 

167 

130 
144 

15 

92 
68 

15 
154 
129 

134 

56 

44 



INDEX 



Admiralty jurisdiction, 15, 71 ; in 

inland waters, 130 
Amendments, Constitutional, 140 
American Insurance Co. vs. Canter, 

70 
Atlantic & Pacific Telegraph Co. 

vs. Philadelphia, 56 

B 

Ball, Thomas, Statue of Webster 
by, 178 

Bank, Baltimore Branch, 36 

Bank of Augusta vs. Earle, 124 

Bank of the United States, 34; 
Power of Congress to charter, 39 

Bank of the United States vs. 
Primrose, 124 

Bankruptcy law, 67 

Banks, Act to tax. State of Mary- 
land, 36 

Banks, State, 36, 43 

Benton, Thomas H., sales of public 
lands, 76, 78 
' Best, Justice, on slave trade, 66 

Blaine, James G., action Republi- 
can party, i860, 176 ; opinion 
on 7th of March speech, 164 

Blatchford, R. M., letter from 
Webster on Passenger Tax cases, 
146 

Boundary controversy, Rhode Island 
and Massachusetts, 130 

Bridge, Charles River, vs. Warren, 
121 



Calhoun, John C, last speech in 
Senate, 165 ; opposing Force Bill, 
95 ; slavery in U. S. territory, 74, 
161 ; vote for Force Bill, 114 

California, annexation and admis- 
sion, 162; debate on admission, 
171 

Carver vs. Astor's Lessee, 76 

Catron, Justice, 147 

Choate, Rufus, Norris vs. City of 
Boston, 145; Rhode Island 
boundary case, 130 

Clay, Henry, 157; letter from 
Webster on approaching Congress 
(1831), 93; tariff bill, 114 

Clayton, John M., tariff bill, 114 

Cleveland, Grover, Failure of Con- 
gress to support, 117 

Colonization, Negro, 175 

Commerce, American, in foreign- 
built ships, 133 ; passenger travel 
as, 145 ; power of Congress to 
regulate, 51 

Compromise of 1S50, 172 

Congress, Power of, to charter a 
bank, 39 ; to govern acquired ter- 
ritory, 70; to regulate commerce, 
145 ; to regulate immigration. 

145 
Constitution, New Hampshire, 19 ; 
Rhode Island (Dorr Rebellion), 
137; State of New York, 1S46, 
formation of corporations, 17 



i83 



1 84 



Index 



Constitution United States, accepted 
as a whole, gg; analysis of, g7 ; 
first to recognize supremacy of 
courts, 2; not a compact but a 
union, 102; not a league but a 
government, g6, loi ; supremacy 
of, 87 

Corporation, State as a, 126 

Corporations, Formation of, under 
Constitution of State of New 
York, 17; right of, to transact busi- 
ness and bring suit in other States, 
124 ; right of State to repeal 
charter, 26; rights of, under power 
of eminent domain, 135 ; taxation 
of a franchise in New York, 26 ; 
Webster on franchise as property, 
22 

Cotton, Interests of, demand slavery, 
166 

Crawford, Rev. Andrew J., letter 
from Andrew Jackson, 114 

Currency, State Bank, Disadvan- 
tages of, 43 



D 



Dane, Nathan, Ordinance of 1787, 

77 
Daniels, Justice, 147 ; in case of 

the Lexington, 1 31 
Dartmouth College Case, 15 ; Story 

manuscript, 27 
Dorr, Thomas W., Rebellion, 137 
Douglas, Stephen A., bill to repeal 

Missouri Compromise, 173 
Duval, Justice, 41 



Emancipation, Lincoln's plan for, 

175 
Emerson, R. W., Fugitive Slave 

Law, 157 
Everett, Edward, letter to Webster 

on reply to Hayne, 86 



Faneuil Hall, closed against Web- 
ster, i6g ; opened again, i6g 

Fitch, John, right to use steam 
vessels in New York waters, 47 

Florida, Webster on government of, 

71 

Foot, S. A., resolution to limit sales 
of public lands, 76 

Force Bill, brief for reply to Cal- 
houn, g7 ; debate on, g ; intro- 
duced, gs ; passed, 114; Webster's 
reply to Calhoun, gs 

Franchise, as property, 122 ; emi- 
nent domain over, 134 

Free States, majority in Senate, 172 

Fugitive Slave Law, binding on all, 
167 ; passed, 172 ; trial by jury, 

173 
Fulton, Robert, right to use steam 
vessels in New York waters, 47 

G 

Garrison, William Lloyd, Fugitive 

Slave Law, 162 
Gibbons vs. Ogden, 47 
Girard Will case, I2g 
Gore, Christopher, Webster student 

in office of, 12 
Great Appeal Case from Alabama, 

126 
Grier, Justice, 147 

H 

Harvey, Peter, report of conversa- 
tion with Webster on Gibbons vs. 
Ogden, 56 

Hayes, R. B., election of 1876, 
158 

Hayne, R. Y., speech on Foot reso- 
lutions, 76 ; Webster's reply to, 
uttered and printed language com- 
pared, 85 ; Webster's summary of 
Hayne's argument, 87 



Index 



185 



Henderson vs. Mayor of New York, 
151 

Henry, Patrick, on preamble to 
Constitution, 9 

Hitchcock, Roswell D., negro 
question, 160 

Holmes (of New Hampshire), coun- 
sel in Dartmouth College vs. 
Woodward, 29 

Hope Mills, 80 

Hopkinson, Joseph, counsel in 
Dartmouth College vs. Wood- 
ward, 29 ; counsel in McCuUoch 
vs. Maryland, 36 

Houston, Samuel, right of Territory 
to legislate, 165 



Immigration, 143 

Inman Steamship Co. vs. Tinker, 
153 



Jackson, Andrew, letter to Rev. S. 

J. Crawford, 114; Webster on 

veto of bill to extend charter of 

U. S. Bank, 40, 1 16 
Jay, John, corrects Webster in Van 

Rensselaer vs. Kearney, 155 
Johnson, Justice, 41 
Jones, Mr., opposing counsel in 

McCuUoch vs. Maryland, 36 

K 

Kent, Chancellor, on Webster's re- 
ply to Hayne, 82, 93 
Key West, Salvage court at, 71 
Kruger, Oom Paul, right to inter- 
pret statutes, 21 



Land grant. Governor of New 
Hampshire to town of Pawlet, 14 



Letter, Edward Everett to Webster, 
86 ; Andrew Jackson to A. J. 
Crawford, 114 ; Chief Justice 
Marshall to Webster, 45 ; Fran- 
cis Lieber to Webster, 170; 
John H. Pleasants to Webster, 
84 ; Stockton to Webster, 65 ; 
Fletcher Webster to Webster, 91; 
Webster, to Blatchford, 146 ; to 
Clay, 93 ; to Jeremiah Mason, 
86 ; to Enoch Parsons, 44 ; to 
William Pope, 90 ; to William 
Sullivan, 94 ; to Fletcher Web- 
ster, 141; to William Wirt, 32 

Lexington, the, Case of, 130 

Lieber, Francis, letter to Webster 
on speech for Constitution and 
Union, 170 

Lincoln, Abraham, comparison with 
Webster's 7th of March speech, 
iv., 174 ; compensated emancipa- 
tion, 175 

Livingston, Brockholst, in McCul- 
loch vs. Maryland, 41 

Livingston, Robert R., right to 
use steam vessels in New York 
waters, 48 

Livy, motto for speech for Constitu- 
tion and Union, 169 

Lodge, Henry Cabot, right of seces- 
sion, 10 

Lowell, James Russell, slavery, 160 ; 
vote as elector in 1876, 158 ; 
Webster's attitude on slavery, 159 

M 

Marshall, Chief Justice, American 
Insurance Co. vs. Canter, on 
government of acquired territory, 
72 ; centennial of accession, 6 ; 
Dartmouth College vs. Wood- 
ward, 24 ; Gibbons vs. Ogden, 
54, 61; letter to Webster, 45; 
McCuUoch vs. Maryland, 41,- 
New York vs. Miln, 144 



1 86 



Index 



Martin, Luther, Counsel in Mc- 
CuUoch vs. Maryland, 36 

Mason, Jeremiah, Dartmouth Col- 
lege vs. Woodward, 28 ; letter 
from Webster on reply to Hayne, 
86 

McCulloch vs. Maryland, 34 ; Jus- 
tices concurring with Chief Justice 
MarshaR, 41 

McKinley, Justice, Passenger Tax 
cases, 147 

McLean, Justice, Passenger Tax 
cases, 144, 147 

Mexico, Cause of war with, 162 

Mexico, New, see New Mexico 

Miller, Justice, Henderson vs. 
Mayor of New York, 151 

Miller vs. The State, charter of cor- 
poration, 26 

Missouri Compromise line in Texas, 
167 



N 



Napoleon, decree against slave 

trade, 64 
Negro question, colonization, 175 
Nelson, Justice, Passenger Tax 

cases, 147 
New Hampshire, Bill of Rights, 19 
New Jersey Steam Navigation Co. 
vs. Merchants Bank of Boston, 
130 
New Mexico, annexation, 162 ; sla- 
very impossible in, 167 
New Orleans vs. United States, iiS 
New York vs. Miln, 143 
Norris vs. City of Boston, 144 
Nullification, 78, 81, 93, 96, 99, 
III, 115 



Parsons, Enoch, letter from Web- 
ster to, 44 



Pauper immigration, 150 

People, source of all political power, 

139 
People vs. O'Brien, franchise as 

property, 26 
Pierce, Franklin, election of 1852, 

173 

Pinkney, William, counsel in Mc- 
Culloch vs. Maryland, 36 ; motion 
for re-argument, Dartmouth Col- 
lege case, 23 

Pleasants, John H., letter to D. 
Webster on reply to Hayne, 84 

Pope, William, letter from Webster 
on reply to Hayne, 90 

Prigg vs. Pennsylvania, 167 

Primrose vs. United States Bank, 
124 



Quarantine, power of State to pass 
laws, 150 



R 



Religious instruction, Girard Will 
case, 129 

Representative government, Growth 
and formation of, 140 

Revolution, English (1688), 141 

Richardson, Chief Justice, in Dart- 
mouth College case, 19 



Scott, Sir William, Lord Stowell, 

66 
Scott, General, election of 1852, 

173 
Secession, 80, 98, 106 ; abolitionists 
in favor of disunion, 162 ; Peace- 
able, impossible, 168 ; Webster's 
prophecy of war, importance of 
postponing, 163 



Index 



187 



Slavery, 157 ; in U. S. territory, 
74 ; situation in 1850, 160 ; stage 
of evolution, 161 ; Webster's view 
of, 158, 166 

Slave trade, cases cited. La Jeune 
Eugenie, Antelope, 65 ; Amedie, 
Fortiina, Le Louis, Madrazo vs. 
Willes, 66 ; question of suppress- 
ing, 63 

Smith, Jeremiah, Dartmouth Col- 
lege vs. Woodward, 28 

Smith vs. Turner (port of New 
York), 144 

Society for the Propagation of the 
Gospel in Foreign Parts vs. Town 
of New Haven, 15 ; vs. Town of 
Pawlet, 92 

Specie payments, 35 

Spencer. Herbert, slavery as evolu- 
tion, 161 

State rights, 100, 127 

States' Rights party celebration, 
July 4, 1831, 93 

States, Power of, to tax immigrant 
passengers, 143 ; to tax instru- 
ment of National Government, 

37, 43 

Steam vessels, Right to use, in New 
York waters, 47 

Stockton, Commodore, letter to 
Webster on slave trade, 64 

Story, Justice, Dartmouth College 
vs. Woodward, 25 ; La Jeune 
Eugenie, 65 ; McCulloch vs, 
Maryland, 41; manuscript review 
on Webster in Dartmouth Col- 
lege case. Preface iv., 29 ; New 
York vs, Miln, 144 ; Webster's 
argument. Gibbons vs. Ogden, 59 

Stowell, Lord, Sir William Scott, 
on slave trade, 63 

Sullivan, William, Counsel in La 
yeune Eugenie, 64 ; letter from 
Webster on Nullification Ordi- 
nance, 94 



Swayne, Justice, in Inman S. S. Co. 
vs. Tinker, 153 



Taney, Chief Justice, great Appeal 
Case from Alabama, 128 ; Passen- 
ger Tax cases, 145 

Tariff, Clay's bill, 1833, 94 ; Nulli- 
fication Ordinance, 94 ; Jackson's 
opinion of, 115 ; Passenger Tax, 
145 ; protective tariff claimed to 
be unconstitutional, 80 

Tax, power of States to tax immi- 
grant passengers, 143 ; to tax in- 
strument of National Government, 
37, 43 

Taxation, of banks, 37 ; Uniformity 
of, in United States, 149 

Texas, Annexation of,i62 ; Missouri 
Compromise line in, 167 

Tilden, Samuel J., election of 1876, 
158 

Town of Pawlet vs. Clark, 13 

Treaty, Louisiana, 118; Paris, 
1783, 8 ; Spain, Florida Purchase, 
70, 73 ; United States and Great 
Britain, Passenger Tax conflicts 
with, 148 

U 

United States Bank, see Bank 
United States Bank, Second, 35 ; 
Jackson's veto, 40, 116 



Van Rensselaer vs. Kearney, 154 
Van Rensselaer, John J. and Jere- 
miah, 154 
Vidal vs. Girard's Executors, 129 



W 



Warren Bridge, 122 
Washington, Justice, McCulloch vs. 
Maryland, 41 



1 88 



Index 



Wayne, Justice, in Passenger Tax 
cases, 144; on Webster's argu- 
ments. Gibbons vs. Ogden, 60 

Webster, Daniel, birth, early condi- 
tions, 7 ; student, early profes- 
sional life, marriage, election to 
Congress, 12 ; criticism and ap- 
probation of speech for the Con- 
stitution and the Union, 169, 170 ; 
funeral. Preface iii. ; letter to 
Wirt on Dartmouth College case, 
32 ; on his own argument in Gib- 
bons vs. Ogden, 56 ; personal at- 
tributes, 178 ; Secretary of State, 
129; speech at dinner in New 
York, March 10, 1831, 82 ; speech 
before New York Historical So- 
ciety, 178 ; variety of talent, 91 



Webster, Fletcher, letter to D. 
Webster on reply to Hayne, 91; 
letter from Webster, 141 

West River Bridge Co. vs. Dix and 
Towns of Brattleboro and Dum- 
merston, 134 

Whittier, J. G., Webster's attitude 
on slavery, 159 ; lines on Web- 
ster, 178 

Wilkins, William, introduces Force 
Bill, 95 

Wirt, William, Counsel Dartmouth 
College Case, 29 ; in McCulloch 
vs, Maryland, 36 ; letter from 
Webster on Dartmouth College 
case, 32 

Wood, George, counsel in Van 
Rensselaer vs. Kearney, 155 



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